This is a simplifed HTML format, intended for screen readers and other limited-function browsers.

About this Title:

Vol. 1 of a 3 vol. set of The Selected Writings. This volume contains a long introduction by the editor and 13 parts of the Reports.

Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi ), or “liberty.” It is taken from a clay document written about 2300 b.c. in the Sumerian city-state of Lagash.

The dangers of legal instruments that are unintelligible to the layman; an illiterate person who transfers by deed must be read the instrument.

42

The Case of Bankrupts

A bankrupt debtor must pay creditors proportionately to their debts and cannot favor one; power of commissioners to avoid disproportionate transfers.

45

The Archbishop of Canterbury’s Case

Statutory interpretation; power of religious houses to received tithes.

49

Part Three of the Reports

Preface

Reports, history of courts, law study.

59

Heydon’s Case

The method and the role of the judge in interpreting statutes; a copyhold case.

78

Fermor’s Case

Fraud bars the legal effect of transactions; fraud in a position of trust is particularly odious; public policy problems if fraud is allowed as basis for judicial relief; a fine and copyhold case.

84

Part Four of the Reports

Preface

Reports, history, judge’s obligations.

94

The Lord Cromwell’s Case

Qui tam proceeding in slander; Coke’s first big case.

105

Cutler v. Dixon

Immunity for acts in judicial proceeding; scandal must be based on acts of impropriety, not good behavior.

111

Vaux’s Case

Double jeopardy, being indicted twice for the same felony, is barred

112

Slade’s Case

Action on the case allowed; beginnings of commercial and contract law.

116

Part Five of the Reports

Preface

The law is important to all citizens, but they do not know it well, which is why Coke writes reports.

126

Foster’s Case

Constables may present an arrestee to any justice of the peace, not only the justice who signs an arrest warrant.

128

The Chamberlain of London’s Case

City taxes; King may grant charters to ships to load in certain havens.

131

Clark’s Case

Local governments may not create imprisonable offences.

134

The Case of Market-Overt

Stolen goods sold in a merchant of a different trade than the goods can still vest good title in a new buyer.

134

Semayne’s Case

Rights of homeowner to bar entry; house is to him as his castle; powers of and limits on sheriff to enter.

135

Rooke’s Case

Sewer commissioners should tax equally all who are threatened by a riverbank; discretion, administration.

141

Pinnel’s Case

Satisfaction of debts.

144

The Case de Libellis Famosis

Rules punishing libel, which include statements that harm reputation, even if true and even if the reputation is of a dead person.

145

Part Six of the Reports

Preface

Common Law existed before the Conquest.

150

Jentleman’s Case

The King can create judges, but judges determine matters after they are appointed.

157

Part Seven of the Reports

Preface

Case of the Post-Nati described; attack on tract from Norwich assize address for misrepresentation.

162

Calvin’s Case

Scot born after James VI of Scotland becomes James I of England is entitled to hold lands in England; allegiance, majesty, conquest, natural reason; law of nature cannot be altered.

166

The Case of Swans

Feræ naturæ and Royal beasts are the Queen’s; one of Coke’s first cases as solicitor.

232

Penal Statutes

Elizabeth I’s grant to another to dispense with penal burdens is void; separation of powers and limits of Royal prerogative to avoid a statute.

241

Part Eight of the Reports

Preface

Antiquity of his sources.

245

Vynior’s Case

The courts will not enforce an agreement to arbitrate.

260

Dr. Bonham’s Case

Censors of College of Physicians may not imprison for unlawful practice of medicine, regardless of the College charter and the Act that confirmed it; the common law controls acts of Parliament and may declare them void; judicial review of legislation.

264

The Case of Thetford School

Proceeds of trust must be used according to intent of settlor.

284

Part Nine of the Reports

Preface

More about antiquities.

288

William Aldred’s Case

Nuisance from a pigsty; environmental law.

308

John Lamb’s Case

Liability for libel.

313

MacKalley’s Case

Requirements for criminal indictment, arrest, and juries.

314

Part Ten of the Reports

Preface

Introduction to cases; antiquities and bibliography.

327

Sutton’s Hospital

Charter of incorporation; early corporate law case; grant of a power to act in the future is good.

347

The Case of the Isle of Ely

Commissioners of Sewers lack powers to decree new rivers; public versus private goods.

378

Part Eleven of the Reports

Preface

Introduction to cases.

385

The Case of Lord de la Warre

Disability of a hereditary member of Lords for life does not disable heir.

388

The Case of the Tailors of Ipswich

None may be barred from lawful employment by an ordinance beyond the limits set by statute.

390

The Case of Monopolies

Grant by the Crown of monopoly for making cards is void; Limits on Royal dispensing power.

394

James Bagg’s Case

Citizenship; disenfranchisement must be based on more than subject’s impolite words.

404

Part Twelve of the Reports

Ford and Sheldon’s Case

Recusancy; retroactivity.

419

Case of Non Obstante

Custom; Parliament cannot bind King’s prerogative.

423

If High Commissioners have Power to Imprison

Church courts and the power to imprison.

425

Floyd & Barker

Immunity of counsel and judges.

427

Of Oaths before an Ecclesiastical Judge Ex Officio

No man shall be examined on secret opinions.

432

Of Pardons

Royal pardon can only waive penalty, not crime.

439

Customs, Subsidies, and Impositions (Bates’s Case)

Limits on Royal power to tax.

441

Buggery

Unlawful sexual acts.

446

Premunire

Writ (similar to prohibition) for use against church court.

447

Nicholas Fuller’s Case

No consultation with a judge will be given out of term; construction of jurisdiction of high commission is a judicial matter of Common Law.

454

Sir Anthony Roper’s Case

High Commissioners and habeas corpus.

461

The Case of Heresy

Evolution of procedure; indictment of Lollards brought limitation of definition by statute.

465

Langdale’s Case

Prohibition does not require a suit in Common Pleas.

471

Mouse’s Case

Justification by necessity.

477

Prohibitions del Roy

The King cannot judge any case he chooses.

478

The Lord Abergaveny’s Case

Office does not attach at delivery of writ, but in seating at Parliament.

481

Of Convocations

Limits on church convocations, which cannot act contrary to the Common Law, statute, or custom.

484

Proclamations

King cannot change the law.

486

Thomlinson’s Case

Habeas corpus case against Court of Admiralty.

490

Walter Chute’s Case

Offices created by the King must be to public benefit.

491

Sir Stephen Proctor’s Case

Procedure in Star Chamber.

494

Exaction of Benevolence

Voluntary grants demanded by the Queen are lawful.

496

Part Thirteen of the Reports

Preface

499

Prohibitions

Prohibitions.

501

The Case de Modo Decimandi

Prohibitions debate.

505

II. Coke’s Speech and Charge at the Norwich Assizes

Preface

523

Coke’s Preface

525

Coke’s Charge

528

Edition: current; Page: [xiii]

III. Excerpts from the Small Treatises

A. Book of Entries Preface

558

B. The Compleat Copyholder Section 33, on Customs

563

C. Little Treatise on Baile & Mainprize Conclusion, 29–31

569

IV. Institutes of the Lawes of England

A. The First Part of the Institutes; Coke upon Littleton

Preface

Life and project of Sir Thomas Littleton, and some about the law; table of consanguinity

Acknowledgments and Dedicatory

This project could not have been completed without the support of Liberty Fund, its officers and staff. Second only to their efforts were those of John Baker, whose care has saved, in many ways, this project from an inglorious end. I am profoundly grateful for the counsel and guidance in thedevelopment of this project over its many years given by Richard and Morris Arnold, Barbara Black, Marius Bolten, David Bovenizer, Alan Boyer, Dan Coquillette, Garett Fagan, Laura Goetz, Michael Hoeflich, Dan Kirklin, Christian Kopff, Dan Levine, Sam Mortlock, William Nelson, Emilio Pacheco, Mark Anthony Reynolds, and especially James Stoner. Hospitality and assistance in the research were provided by Whitney Bagnall and Kent McKeever at Columbia, David Warrington and his staff at Harvard, Mark Nicholls at Cambridge, Sharon Bradley at Thomas Cooley, and Glen-Peter Ahlers and David Gay at the University of Arkansas. The staff of the Earl of Leicester, particularly Mike Daly and Sam Mortlock, have been terribly gracious and helpful. I am indebted to the good offices of Mr. Mortlock, and of Marjorie and Brian Gill in photographing and confirming the engraving of certain lines in Sir Edward’s epitaph in Tittleshall, which made possible the duplication of its inscriptions in these volumes. Danny Abbott, Jenny Adelman, Ingrid Arinez, K. Dement, Jay Atwood, Sylviane Donnadieu, Jessica Gunter, Richard Highsmith, Johnathan Horton, Charlene Kim, Orse Kore, Jackie Long, Al Sleicher, Louisa Vassileva, Shanna Wells, and Brett Worlow provided valuable and tenacious assistance in manuscript production.

This edition is dedicated to my teachers, the first and most influential of whom were my parents, William and Martha, all of whose care and dedication made this edition possible.

S.M.S.

The University of Arkansas

2003

Edition: current; Page: [xviii]Edition: current; Page: [xix]

A Note on the Texts, Editions, and Translations

This anthology of the writings of Edward Coke is designed to present a sampling of the works that chronicle his career and its influence on issues of law, constitutions, politics, government, economics, and liberty. In culling from the vast corpus of his writings, some materials, such as cases dealing with the struggle for judicial independence and jurisdictional primacy in the courts of law, are overrepresented as a portion of his works. Other materials, such as his writings on English history, titles, and estates, are quite underrepresented. Regretably, argument and opinions of Coke’s reported by others have been omitted owing to the limits of space and cost. It is hoped that a collected scholarly edition of his works may one day remedy these and the other omissions that were necessary to achieve an edition even as short as the present one. The emphasis of this edition being on the influence of his works, it is constructed largely from the writings as they were printed in his generation and the next, without regard to a new comparison to the references that will one day be mandatory for a thorough reappraisal of his works, when such an edition is attempted.

Thus, certain limitations have been accepted in the development of this edition of Coke’s writings. The most important was to limit the project to the reproduction of printed materials, without attempting further comparisons of those sources with manuscripts. This limitation also means that certain of Coke’s writings that have never been published are not within the scope of this edition.

The texts have been chosen preferring the following criteria: Editions without notes, editing, or annotations by later writers are preferred; later editions that would have been overseen by Coke and corrected by him or under his supervision take precedence over earlier editions; editions that were translated by Coke or by lawyers working in his tradition are preferred to those in French and Latin; and earlier translations are preferred to later translations in order Edition: current; Page: [xx] to diminish the degree of anachronism, although corrected editions of early translations have been consulted. Further, certain spelling and typographic conventions have been modernized in order to increase the clarity of the text for the modern reader, and some of these modernizations of the selected texts have been adopted in the light of modernizations employed in later editions. In particular, conventions adopted from the 1793 edition and from the preparation of the Coke volumes of the 1907 English Reports have been occasionally applied in the editing of the 1658 Reports here, the intent being to present an edition based predominately on the 1658 text, but including such improvements as may enhance its comprehensibility for the modern reader. The orthographic change that will most trouble specialists are the conversions of i, j, u, v, and the long s to modern usage.

The most significant alteration of the texts occurs in the quotations of statutes, particularly in the excerpts from the Second Institute. Coke’s original editions quoted the Latin text of statutes in received forms from manuscript and printed editions. Here, the statutes have been replaced with translations from canonical sources produced in the generations following Coke’s, which would have been consulted by lawyers employing Coke’s materials. Magna Carta is taken from Magna Charta (Edward Cooke, trans., London, Printed by the assignees of R. and E. Atkins for T. Simmons, 1680), the translation by Edward Cooke, the barrister. The reader is cautioned that this edition is neither authoritative as a matter of current law nor the most accurate translation as a linguistic exercise, but its selection is consonant with translations that would have reflected the understandings of these texts in the generations immediately following Coke’s work. Other statutes are taken from The Statutes of the Realm, 1810–28, a nine-volume edition of official, if not always precise, translations into English, or from The Statutes at Large of 1743, an edition edited by Owen Ruffhead that was the commercial predecessor to the official edition of 1810.

All other translations are relegated to the notes and have been provided newly for this edition.

Applying these principles, selections have been taken from the following texts:

I. Selections from The Reports

Prefaces Vols. 1–11

The various first London editions

Reports Vols. 1–11

1658 London edition (with additional text from 1680 and 1793)

Preface & Reports Vol. 12

1655 Bulstrode edition

Preface & Reports Vol. 13

1659 Roycroft edition

II. His Speech and Charge at the Norwich Assizes

From the second edition, 1607

III. Excerpts from the Early Treatises

The Compleat Copyholder

1644 edition

Little Treatise on Baile & Mainprize

1635 edition

Book of Entries

1671 edition

IV. Excerpts from the Institutes

First Part

1639 edition

Second Part

1642 edition (see note above regarding statutes)

Third Part

1644 edition

Fourth Part

1644 edition

V. Speeches in Parliament

1593

Cobbett’s Parliamentary History of England, I (London, 1806)

1621

Cobbett’s Parliamentary History of England, I (London, 1806), supplemented with private accounts recorded anonymously in A Journal or Diary of the Most Material Passages in the Lower House of the Parliament Summoned to be Holden the Sixteenth Day of January Anno Domini 1620 but by Prorogation Adjourned Till the 23th and then again to 30th of the Same Month, along with The Notes by Sir Thomas Barrington of the House of Commons in 1621.

Cobbett’s Parliamentary History of England, II (London, 1807), supplemented with “Proceedings and Debates of 1628” in Common Debates 1628 (New Haven, 1977), which was collected from twelve different sources and also supplemented with materials found in manuscript sources, Harleian MS 1601 and Stowe MS 366, and The Diary of Edward Nicholas S.P. 16/97.

VI. Appendix I: Official Acts Related to Coke’s Career

Orders of Privy Council Acts of the Privy Council, HMSO, 1906

Edition: current; Page: [xxiii]

Introduction

Four hundred years ago, Sir Edward Coke published the first volume of his Reports. In time, his publications would include a surprisingly comprehensive set of cases and treatises that would help to modernize the law. Moreover, his decisions as a judge and arguments as a statesman uniquely contributed to the foundation of the law as an institution independent of the political powers of the state and capable of defending the freedom of the citizen. It is fair to say that no one has contributed more to create the modern notion of the rule of law.

Coke, whose name was pronounced “cook,” was born in 1552 in Mileham, Norfolk, an eastern, mainly puritan country town of England. He studied at Cambridge, became an influential and wealthy lawyer, served Elizabeth I as Attorney General, and served James I as Chief Justice successively of the two law courts, the Court of Common Pleas and the Court of King’s Bench. He opposed the King’s interference in judicial affairs and was removed, although he stayed a royal adviser for many years. He entered Parliament and fostered the Petition of Right, a forerunner of the Bills of Rights in England and the United States. (A detailed chronology follows this introduction.)

Coke’s influence was great at a pivotal moment in English and American history. Teetering at the end of the 1500s, the Tudor England of which Coke wrote and in which he was the master lawyer had seen the end of the feudal order and the dawn of the commercial age. The Stuart England in which he judged saw the adolescence of the printed book, of King James’s Bible and Shakespeare’s plays. Moreover, it was an age in which kings sought ever more control over the affairs of state and of individuals but in which individuals had both new ideas about their own opportunities and new money with which to pursue them. The conflicts that emerged to be solved by the law—disputes about property, colonies, commerce, employment, bankruptcy, reputation, natural resources, religion, taxes, crimes, representative and bureaucratic government, and liberty—were taking on many new dimensions.

Coke resolved those conflicts employing the system of law in a way that Edition: current; Page: [xxiv] seemed predictable and consistent and, most important, that was, in the end, without favoritism. He developed books that enshrined not only the results of individual conflicts but also his view of the system, justifying it with a mixture of history and reason. This view of law was a powerful tool, one that also protected certain values of long-lasting influence, especially in the new colonies then being cut into the forests of the Atlantic coast of North America. In these colonies, up to and after the American Revolution, Coke’s statements of the law, and of the law’s protection of the individual from unreasonable claims by the King or the Parliament, were the central learning of every lawyer.

It has been more than a century since a new edition of any of Coke’s writings has been published. More surprisingly, perhaps, there never before has been an anthology that draws from the breadth of his printed works and speeches as justice and parliamentarian. A great need persists for a scholarly edition of all his works. Even so, this edition’s goal is much more modest, to present the artifacts of Coke’s career, essentially in the printed forms by which they influenced the course of the law, both for reappraisal and for inspiration in considering the recurrent problems of the law.

Coke’s Life and Ideas

Edward Coke is a difficult and complicated figure in history, which is unsurprising, as he was a difficult man living in a turbulent time. In his youth, he was a brilliant lawyer but a political hack and a fawning courtier. In his age, he was a scholarly judge and courageous statesman but a venal father. He lived in a time, though, when the compromises of the feudal order were being supplanted on the one hand by absolute monarchy and on the other by exploration and commerce.

Coke forged his views of law not by pondering its niceties but by fighting in its trenches. Coke early acquired a reverence for technique, research, and the honing of a good theory of a case in litigation. He worked hard, had a good memory, and learned the legal precedents as well as anyone ever had. He would turn these techniques and skills to the service of his clients, for whom he deployed a comprehensiveness and lack of reserve that could be breathtaking. As an ambitious young lawyer from a good family (but not a family so good as to tie him initially to the ancient landed interests) and as a protégé of the master politician and royal adviser Lord Burghley, a self-made Edition: current; Page: [xxv] man who saw his nation’s future in its economy, it is not surprising that Coke found himself representing clients who needed new legal remedies and rules.

For Coke to argue for new results from old principles did not require him to believe that he was pursuing change, or arguing for a grand theory, or pursuing a legal revolution. He could merely uphold the rights of Parliament to make law and of the court to apply its traditional principles. By doing so, particularly when those principles included doctrines of reason and remedy, he was pursuing his clients’ interests and harvesting “new corn from oldfields,” in the same manner lawyers had done for generations before him and for all time since. Thus, he could accept, and promote, an idea of law that was at once unchanging but also changing.

His early work therefore pursued a considerable degree of economic liberality in the law, and it is no surprise to see Coke later arguing against monopoly, against lands tied in feudal bonds, and against restraints of trade. Although he did not pursue the wholesale laissez-faire economic regime developed a century later, he was nearer to it than most in his age, and his reforms of the law made its realization all the more possible.

A great lawyer with tremendous skills devoted without reservation to the client can become a tool of tyrannical power if the client is a politician, and as the attorney general of a queen Coke adored, he was hardly immune from abusing his gifts. But when those same skills were turned to the protection of his final client, the law itself, Coke turned loose those gifts in its service.

In this way, Coke applied the same artifice he early used to win property and contract disputes when he later defended the power of Parliament and the bench, the fount and the vessel of the law. He became a tireless advocate of the monopoly of courts of law as the arbiters of disputes, challenging local courts, church courts, private arbitrators, the Chancellor, and even the King.

Coke was ever loyal to James I personally, whom he sincerely called the fountain of justice (as opposed to the fountain of law). Yet this loyalty was not without limit, and Coke argued time and again that Parliament and the Common Law remained the sole sources of the law and that all things must be done by law, particularly the defining of crimes, the levying of tax, and the judgment of cases.

Moreover, the two ideas for which James I, and later Charles I, would most persecute Coke, that judges must act not by command of the King but by the dictates of law and that the law protects the King (as opposed to an all-powerful Edition: current; Page: [xxvi] monarchy subordinate to none but God), can easily be seen in cases he litigated and reported from the time of Elizabeth, which themselves rested on antecedents Coke took pains to enumerate. Simply, the law was not only the means by which the monarch received and gave property but also the tool that protected the monarch’s interests in property. The King was powerless to change the nature of a common-law estate in his own lands. Only Parliament could do that, and it could do so only in a manner the courts would accept. In cases turning on means as varied as the common-law standards for the definition of an interest in property, the construction of the meaning of a statute, and the limitations and powers that accrue during judicial process, the monarch’s interests in such cases were determined time and again by the preexisting dictates of the law, or at least what the judges proclaimed the law to have been. From such a stage—on which Coke acted practically without a peer as the consummate artist of pleading, precedent, and argument—Coke took all of the tools he would need not only to protect the Queen against her adversaries but also to protect the courts and Parliament from the later kings.

These tools made Coke a dubious courtier. At times, he was embarrassingly ingratiating, but at others his insistence on following his views of the law made him so irritating to the monarch that, had he been a man less useful in so many ways, it would have threatened his life. King James is said to have described Coke as “like a cat: throw her which way you would, she will light upon her feet.”

At the height of his career, Coke stood as a barrier against royal power to dictate the outcome of the law. He argued for untrammeled discretion of the judge to “do as a judge ought to do,” without royal command or assent. He argued for a single set of laws, common throughout the realm, according to which liberty and property would be reliably regulated, without the recurrent loss of liberty that accompanied courts held as special privileges by local lords, crown administrators, and church officials. The law, as Coke articulated it, protected the individual from tyrannical abuse.

This is, if nothing else, a recipe for the rule of law, of which Coke had a full vision. He saw the rule of law as a complicated amalgam of precedent and argument, reason that brought old laws to answer fresh questions, at least to the practitioner who was both well-skilled in its arcane methods and rules and well-versed in the law’s special customs and obligations. The tool most essential to that vision was a comprehensive record of the methods and substance of the law, and this was the chief legacy of his writings.

Edition: current; Page: [xxvii]

Coke’s Writings

English law for centuries had Year Books and scattered reports collecting cases, statute rolls collecting Acts of Parliament, and a few treatises synthesizing them both on particular topics, primarily the interests of nobles in land. Even so, prior to Coke’s Reports and Institutes, no single written source of English law had managed to strike the balance between the breadth and specificity needed to convey the contours of a whole system of rules and the brevity and selectivity needed to keep the system sufficiently manageable for use. Further, times had changed, and traditional materials required revision to account for both new principles of law and new forms of dispute.

Coke began collecting his private case reports early in his career, not just recording cases he argued (with a decided preference for cases he won), but collecting other cases by watching them, speaking with principals in the opinions and arguments, and amassing a trove of others’ notes. He even sent his students to hear arguments and to take notes for him when he couldn’t attend, a task on which he seems often to have sent the young student and later colonist Roger Williams. By the time he became Attorney General, the quality of his notes, the range of his reports, and his authority as a lawyer made the Reports an instant success.

Coke’s writings sometimes slant the bases for his case opinions, occasionally slanting them until, in the opinion of some, his report has turned them upside down. There are times when Coke describes precedents to support a position that would require an unusually idiosyncratic view of the precedent, and he notoriously accepts the authority of earlier law books, particularly the dubious Mirror, with a blithe and credulous trust. Most obviously, for all of the reading he did of history (and he read many books on history) Coke seems to have had a very anachronistic eye for the past, often reading the oldest of precedents as if they had been written in his own time, except for the authority they had gained by virtue of their antiquity. Although this anachronistic tendency might have weakened his merit as a legal authority, it also fanned the flames of his imaginative reinterpretations of ancient sources of law, a phenomenon that made possible Coke’s wholesale translation of Magna Carta from the contract protecting only the nobility into the law protecting all of the crown’s subjects.

Certainly a portion of the authority that Coke cited as a basis for his statements of particular rules of law ranged from questionable to nonsensical. On the other hand, the percentage of Coke’s statements for which this is true is Edition: current; Page: [xxviii] nowhere near as high as his detractors sometimes imply; it is just enough to color his enterprise a rather self-authenticating hue. And he did serve as his own authentication. Given his unparalleled personal authority, Coke simply pulled it off. Setting aside his, perhaps inevitable, removal from the bench, it mattered little that the likes of Bacon and Ellesmere griped to the King that Coke’s Reports misconstrued the cases or that his authorities were weak. Indeed, it has mattered less that historians have plucked at the hem of Coke’s gowns over his sources. The fact remained that once Coke—encyclopedia of precedent, virtuoso of pleading, law teacher, Solicitor General, Attorney General, Lord Chief Justice of both of the great law benches, Speaker of the House, and proud and incorruptible arbiter of the disputes of King and commoner alike—said that something was the law, almost everyone agreed. In 1824, nearly two centuries after his death, it was explained aptly. “Lord Coke,” wrote Chief Justice William Best, often, “had no authority for what he states, but I am afraid we should get rid of a great deal of what is considered law in Westminster hall, if what Lord Coke says without authority is not law. He was one of the most eminent lawyers that ever presided as a judge in any court of justice.”

Despite the complaints of those, like Lord Campbell, that Coke was illread, his writings are models of prose by a well-read, well-rounded man of his age. He sprinkles his reports with classical allusion; he is particularly fond of Virgil. Moreover, he writes complicated fact patterns with a clarity that still eludes some judges and reporters centuries later. He is a great coiner of epigrams and maxims, and many of his lines have pith, wisdom, and humor. Littered about the Reports and especially the Institutes are guarded asides to law students, cautions to practitioners, and observations on the rules of the law, some of which are still routinely quoted today. As generations of young lawyers have learned, Coke’s prose canbe complex and his organization diffuse, but the rewards of careful reading are abundant.

Coke’s published works are essentially of three forms: reports, treatises, and speeches. He published his own reports in eleven separate folio volumes, and two appeared posthumously. (There are still more notes for reports that have never been published.) To see the reports as the sum of his judicial works would be to miss his many arguments as a lawyer and opinions as a judge, some of which were reported later by others. His lengthiest project as seen by his successor generations were his treatises, particularly the four Institutes, which are usually bound into only three fat folios or six fatter quartos, not including the short treatises on bail and mainprize and copyholding, and the Edition: current; Page: [xxix] manual on pleading. The extant speeches, other than those reported as case opinions, are largely in the form of records of the debates in Commons and in the Privy Council, although the interesting charge to the jury at Norwich falls into this category as well.

One word is in order when comparing the selections in this book to Coke’s writings as a whole. Coke’s writings comfortably fill a dozen books with big spines and small print, and an editor choosing what not to include is like Ali Baba in the cave of the forty thieves: there are too many treasures to carry them all away. Although the width of this edition testifies to the patience of the publisher, many wonderful and significant portions of Coke’s writings remain untouched. Some of his writings are simply delightful, like his proof that mastiffs are not dogs in a statute punishing dogs that enter the King’s woods, or his tale of the judge who built Westminster clock as a penalty for reducing a poor man’s fine. Leaving these stories and many of the finer points of early modern common law aside has been rather painful, but those selected stand as testament to the rich domain which this edition only surveys.

Coke’s Influence

At the distance of four centuries, it is easy to mistake the significance of Coke’s achievements. One might overestimate Coke’s contributions by missing the significance in his work of such predecessors as Fortescue, Bracton, and earlier judges, or such allies as Selden and Davies, or such adversaries as Ellesmere and Bacon. It is likewise easy to underestimate Coke’s contributions by seeing them as but an articulation of principles that were rarely in doubt or by simply failing to notice their significance, breadth, or novelty.

The arena in which such mistakes are especially regrettable is in appraising Coke’s contribution to the modern notion of the rule of law. A controversial and multifaceted notion, the rule of law can be thought of as the idea that no person or group controls the state but that laws are applied to everyone equally and fairly by impartial and independent people who are themselves bound by the laws to do so.

Although it dates from classical Greece, the idea of the rule of law made slow headway in a world personally governed by emperors, popes, and kings. Of course, the compromises among king, lord, and peasant necessary to maintain the feudal order were enshrined in law, but such laws were dependent on an uneasy balance of power and could guarantee neither the stability necessary Edition: current; Page: [xxx] for justice and predictability nor the mutability necessary for economic change and adaptability. Such a guaranty requires a relatively stable body of laws, sufficiently comprehensive to resolve the complicated questions of human dispute. It also requires methods for determining the existence of those laws and determining precisely which requirements of law govern a particular dispute. It requires tools for enforcing such a determination without regard to the status of the disputants, the biases of the judge, or other factors beyond the dispute and the rules. Last, it requires a near-monopoly of those rules as the source of resolution of disputes. Some of these requirements are terribly problematic, such as determining when a judge acts from bias, what laws may accord status, or what status may not be accorded by laws. Neither those problems nor occasional lapses alter the general requirements of the rule of law, and these requirements were each pursued quite deliberately by Coke.

The influence of this idea of law was in every sense revolutionary, especially in the new balance it struck between monarch and subject. Indeed, notions of a legally limited monarch and of common subjects who held rights, which were, thanks to Coke, now deemed to have existed since Magna Carta, and the idea of a legal machinery independent of all but the authority of the nation’s legislature are nearly inextricable from the other causes of the English Civil War, of the American Revolution, and of the American Civil War.

Coke was sponsor or author of many ideas that are now embedded in the structure of the law. England has applied Coke’s reports and acknowledged his lessons, and he deeply influenced such writers as Blackstone and Stephen, judges such as Lord Eldon and Lord Denning, and policymakers such as Edmund Burke. He is regularly cited still, and recent surveys of judicial databases yield surprisingly thick lists of citations to Coke’s writings from the benches of the common-law world. (A few American citations are listed in the bibliography in volume three.) In all, though, judicial reaction in England and America, centuries after Coke, is now rather like the American response to the writings of Joseph Story; that is, he remains an important figure in the development of the law, whose works are authoritative but not conclusive in arguing for the meaning of ideas and laws.

There are, however, wider circles in the intellectual pool through which Coke’s ideas still ripple. Milton and, later, Locke and Montesquieu argued for the protection of the citizen through orderly laws that are independent of the raw power of monarch or parliament. Likewise, Fuller’s independence of the law from the church, Harrington’s legal limits on the aristocracy, Hobbes’s Edition: current; Page: [xxxi] practical view of the state, and Smith’s commerce free from oppressive laws are seen by many commentators today as then-novel ideas. Yet thesearguments essentially traveled on roads that had been surveyed by Coke. Some, particularly Thomas Hobbes, could hardly have written their greatest works but for Coke’s antecedent writing, even if it served mainly to focus their objections.

Writers of philosophical treatises strive to present a comprehensive system, designed to minimize contradiction in a single exposition. By contrast Coke wrote over a long period, encompassing numerous discrete questions, and the whole of his writings present ambiguities and contradictions in a corpus that was not designed on philosophical lines. Simply, Coke was not a philosopher but a lawyer. His works were somewhat inaccessible to the reader who was neither well-skilled in the language of the law nor prepared to become immersed in its study. All of that said, Coke’s influence on the political philosophers of the seventeenth and eighteenth centuries, who generally learned the law through his writings, was substantial, and they often acknowledged their debts to him.

His influence on the practical affairs of law and state was rather more direct in America through her colonists, the likes of Roger Williams, James Otis, John Adams, James Madison, George Wythe, Thomas Jefferson, and John Marshall. From Coke, Americans took not abstract notions of government but the tools of law, among them tools of substance—citizens’ rights against the state, common law supremacy over local law, legal protections of property from state invasion, limits on monopoly and restraints of trade, the right to habeas corpus, and the right to limit the burdens of taxes and criminal sanctions to those that are enacted only by the people’s representatives—and tools of process—judicial independence, judicial review of statutes, judicial review of administrative officials, and judicial impeachment for favoritism or bribery. Americans also acquired the habit of case reporting, treatise writing, and statutory inventory, eventually building a vast body of written and accessible law.

Aristotle’s government of laws rather than men was given a practical foundation by Coke’s writings and by a career in which, as Maitland said, “The Common Law took flesh.” He was an incorruptible judge, a lawyer dedicated to the integrity of law, whose personal authority and legal acumen forever altered the nature of the Common Law.

Edition: current; Page: [xxxii]Edition: current; Page: [xxxiii]

Chronology of Events

Material to the Life, Times, Writings, and Legacy of Sir Edward Coke from the Death of Henry VIII to the Opinion in Marbury v. Madison

1The reader is cautioned as to the reliability of specific dates for conferences and hearings, particularly from 1608 to 1613. The official records often conflict; for that matter, so do private accounts and secondary sources. Most dates are recorded here relying on Coke’s notebook entries.

38 Hen. 8; 1 Edw. 6 January 28, 1547

Henry VIII dies; Edward VI becomes King.

February 1, 1552

Edward Coke is born, to Robert Coke, of Lincoln’s Inn, and Winifred Coke (née Knightley), in Mileham, Norfolk. He later said that his birth occurred so suddenly that his mother delivered him on the hearth and not in her bed.

July 6, 1553

Edward VI dies.

July 10, 1553

Lady Jane Grey proclaimed Queen.

1 Mar.; 1&2 Phil. & M. August 3, 1553

Mary Tudor, a Catholic, proclaimed Queen; Lady Jane is sent to the Tower.

October 1, 1553

Mary crowned Queen.

November 17, 1558

Mary dies. Elizabeth, a Protestant, is pronounced Queen.

1 Eliz. January 15, 1559

Elizabeth I is crowned Queen.

1561

Robert Coke, Edward’s father, dies. Edward is nine.

1561(?)-67

Coke attends the Norwich free school, studying with Mr. Walter Hawe.

October 25, 1567

Coke matriculates at Trinity College, Cambridge; he may have been tutored by Whitgift, Archbishop of Canterbury.

1569

Winifred Coke, Edward’s mother, dies.

December? 1570

Coke goes down from Cambridge without an earned degree. An M.A. would later be conferred by grace of the university.

January 21, 1571

Coke enters Clifford’s Inn, London.

April 24, 1572

Coke enters Inner Temple as a student of law; he gains particular attention in The Cook’s Case, argued on the quality of food served in the Inn.

April 20, 1578

Coke is called to the bar, a year early under the rules of the Inns.

1579

Coke defends a vicar, Mr. Denny, from Lord Cromwell in an action for libel based on a religious dispute and Denny’s statement that Cromwell, who hired preachers who abjured the queen’s Prayer Book, “like of men who maintain sedition against the Queen’s proceedings.” Coke wins an arrest of judgment by spotting a pleading by his opponent based on a faulty translation into English of a statute. See The Lord Cromwell’s Case, p. 105.

1579–81

Coke is counsel in Shelley’s Case, argued by order of Elizabeth I before the Lord Chancellor and all the judges of the realm. The case turns on whether land can be bound up by granting the land to a person for life, with a remainder to that person’s heirs. Coke argued successfully that such a limitation ought to be construed to create a single perpetual estate, a fee simple absolute, for the person receiving the land. This allowed the recipient and subsequent grantees greater ability to transfer the land. See Shelley’s Case, p. 6.

1579–85

Coke appears as junior barrister in numerous cases under Edmund Plowden and John Popham. He keeps a private notebook with transcriptions of cases earlier reported in manuscripts, a commonplace book, and notes of his own professional and personal life; in time, this notebook will serve as the basis for his Reports.

1580–83

Coke appointed Reader, or lecturer, of Lyon’s Inn; this appointment is extraordinary, as it usually is made to men ten years or more his senior.

1580–85

Coke purchases manors throughout Norfolk, raising concerns he is monopolizing the whole land market there. He is said to have been allowed by the Crown to purchase only “one acre more” with which he purchases an estate named “Castle Acre,” which had as much acreage as he had earlier possessed.

1582

Coke circulates a manuscript of his report of Shelley’s Case.

August 13, 1582

Edward Coke marries Bridget Paston, the “first and best wife,” whose dowry was £30,000; they would have ten children and happily reside in Huntingfield Hall, Suffolk. Throughout their marriage, Coke would commute from his house in Castle Yard to Huntingfield between terms.

1582

London municipal water is first moved in the city by mechanical pumps.

1583

Coke defends Lacey for murder.

1584

Coke first serves as justice of the peace on the Norfolk Commission of the Peace; he is reappointed in 1586, 1588, and 1591.

Coke defends Flemming for unorthodox baptism, having the indictment dismissed for failing to state its relationship to an earlier conviction, raising the chance of double jeopardy. However, he loses a case for a copyholder, despite his arguments from history and pleading requirements.

1585

Coke successfully argues that the Queen’s grant of an abbey did not also grant a dependent rectory because the general language of the abbey grant was technically insufficient to grant the rectory as a portion of the abbey.

Coke elected Recorder, a part-time judge, of Coventry.

1585–90

Edward becomes a protégé of William Cecil, Lord Burghley, Elizabeth’s Lord Treasurer and great counselor.

April 2, 1586

Coke elected Recorder of Norwich.

1586

Coke represents the Register of the Court of Admiralty in a suit for proceeds from the office of the co-Register. He represents the Vicar of Pancras, arguing against a prohibition of a dispute in the Spiritual Court for the payment of tithes. He appeals a partition of property that fails to specify either the statutory basis of the partition or the nature of the estate by which the lands were held.

1587

Christopher Marlowe’s play Tamburlaine the Great is performed, establishing blank verse as the medium of choice on the stage.

Coke argues Sir Thomas Gresham’s Case, on behalf of Lady Gresham, whom he saves from having to pay a fine for alienating a use. He also argues Cooper’s Case, an action for the killing of eighteen rabbits.

April 5, 1588

Thomas Hobbes born.

1588–90

Coke begins careful note-taking of a wide range of cases argued by both himself and others, as well as collecting information for reports of unreported cases. By 1591, he appears to have intended to publish his reports, the first of which would appear in print in 1600.

1589

Coke attends Parliament as a burgess for Aldburgh, Suffolk.

Coke wins Read and Nash’s Case, another case involving the Greshams, and The Lord Paget’s Case, both of which are cases on the regulation of uses, by which lands could be held by one person for the benefit of another. He loses an unusual case with implications for corporations, in which church wardens sue for the theft of the church bell committed before their tenure, a detail that required Coke to win a difficult argument, but he lost when the court decreed that later wardens must consider the loss to be to the parishioners, not to themselves.

Coke defends Guildford, who is charged with the crime of recruiting for the Roman church, securing his release because the charge was brought too late.

Coke is made Bencher, or a senior lawyer, of the Inner Temple.

October 14, 1591

Coke is unanimously elected Recorder of London, voted £100 pension; he will serve as Recorder only until June of 1592.

1591

Coke invents a defense plea to confess and avoid a plaintiff’s title, which is useful in claiming that the defendant is the rightful occupant of property, even though the plaintiff might have a legal right to own it.

1592

Coke is appointed Reader, or lecturer on law, by the benchers of Inner Temple; he lectures particularly on uses. His lectures would be cut short by an evacuation to escape the plague.

June 11, 1592

On the recommendation of Burghley, Elizabeth I appoints Coke Solicitor General. At the time of his appointment, Coke is chastised by Elizabeth for bringing arguments against her interests in taking estates by escheat, to which he tearfully responds, assuring her of his loyalty to her.

1593

The freeholders of Norfolk elect Coke a member of Commons “unanimous, free, and spontaneous, without any solicitation on my part.”

February 19, 1593

Coke is elected Speaker of the House of Commons; his opening address as Speaker both recites an ancient tradition of strong monarchical authority and, according to the new custom, asks for freedom of speech in Commons. He is a loyal lieutenant to the Queen throughout the session, burying a bill on reformation of the ecclesiastical courts but delivering up large new subsidies, or taxes, although he did much to protect Parliament’s “ancient” rights. See Coke’s speeches, p. 1187.

April 10, 1593

Parliament is dissolved; Coke gives a speech on the antiquity of Parliament, extolling its obedience to the sovereign. See p. 1191.

June 1593

Christopher Marlowe dies.

April 1594

Thomas Egerton is made Master of the Rolls, vacating the office of Attorney General. Coke and Francis Bacon both seek the post. Coke is opposed by the Earl of Essex, the Queen’s favorite and a sponsor of Bacon’s. Coke is favored by Burghley. This is the period of Bacon’s and Coke’s first great rivalry; Bacon refers to Coke as “the Huddler.”

April 10, 1594

Coke is made Attorney General. Although Coke believes the appointment is the result of Burghley’s patronage, he is likely to have been the Queen’s own choice. Coke obstructs Bacon’s appointment as Solicitor General, performing the duties of both offices for over a year.

1594–95

Romeo and Juliet is first performed.

1595

Attorney General Coke argues for the power of the church court called the High Commission in Cawdrey’s Case, in which a priest was barred from preaching. The power of the Commission to employ the penalty for a first offense is upheld, although the penalty had been allowed under the statute only for repeat offenses. Coke’s precedent-laden report of the opinion would serve as a basis for asserting royal jurisdiction over all questions of church law. The precedents of this report were strongly attacked by the Jesuit Robert Parsons at the time, and Coke would have his own arguments with the Commission in later years. He also argues a prohibition to assess the tithes owed a rector when a vicar changed the crops in a field from corn to saffron.

1595–1603

Religious dissent from Catholics and Puritan nonconformists grows. Coke leads efforts to suppress pamphlets, attributed to the Jesuit Robert Parsons, promoting the Infanta of Spain as Elizabeth’s successor.

Elizabeth’s court is plagued by assassination plots, real and rumored. Coke oversees numerous interrogations of defendants, some under torture in prison, some in court, beginning with the trial of a Spanish spy, Elizabeth’s physician Roderigo Lopez, for conspiring to kill her.

1596

Coke, as Attorney General, represents the Archbishop of Canterbury, successfully defending him against a prohibition seeking to end tithes owed on lands taken by the Crown in the dissolution of the monasteries. See The Archbishop of Canterbury’s Case, p. 49.

Coke is elected Treasurer of the Inner Temple.

1597

Francis Bacon first publishes his Essayes. The first book of ten will be enlarged in subsequent editions to thirty-eight, in The Essaies of Sr Francis Bacon Knight (1613), and to fifty-eight, in The Essayes or Counsels, Civill and Morall (1625).

June 27, 1598

Bridget Coke dies, aged 34.

August 1598

Coke courts Lady Elizabeth Hatton, granddaughter of Burghley, the widow of the nephew and heir of Lord Chancellor Hatton. Bacon is also a suitor for her, being promoted to her by Essex. Coke proposes to her at Burghley’s funeral and is accepted, thanks to support for him from her father Thomas Cecil, the new Lord Burghley, and her uncle, Robert Cecil.

November 7, 1598

Coke, aged 50, and Lady Elizabeth, aged 20, are married, “a strange match, and which seemed to afford more amusement to bystanders than comfort to the parties concerned.” They are married secretly, violating a church canon against marriages in private houses or without a license or the publication of banns. Archbishop Whitgift moves to excommunicate Edward, Lady Elizabeth, the second Lord Burghley, and the rector who married them. Edward petitions for a dispensation, which is granted on account of Coke’s “ignorance of the ecclesiastical law.”

August 23, 1599

Frances Coke, the first daughter of Coke and Lady Elizabeth, is born, ten months after their marriage, despite false rumors that Lady Elizabeth was pregnant before her wedding. Queen Elizabeth I is Frances’s godmother.

1599

Edmund Spenser, the poet and author of The Faerie Queene, dies, aged 47.

1600 or 1601

First performances of Julius Caesar and of Hamlet.

Summer 1600

Coke argues and wins The Case of Alton Woods, winning a large estate for the Queen, using very technical rules of inheritance and property law, but arguing for a narrow understanding of the estate tail, which would help tie lands up in families and diminish the free trade in lands.

June 1600

The Queen’s former favorite, Robert Devereux, Second Earl of Essex, is tried before a special commission following his disastrous attempt to quell a rebellion in Ireland, capped by his making a private truce with the rebel leader, although his real crime was to disobey the Queen in a secret marriage to one of her maids of honor. Essex is confined to his house and then deprived of most of his honors. He loses the Queen’s favor and financial support and, apparently, becomes deranged.

1600

The first volume of Les Reports de Edward Coke is published by T. Wight. See p. 3.

February 9, 1601

Believing his life endangered following an attack on his friend Henry Wrothesley, Earl of Southampton, Essex accelerates a variety of conspiracies, which amount to rebellion. He locks four members of the Privy Council in his house and attempts to rally Londoners to assault the Queen’s guard, resulting in a few small riots that end when Thomas Cecil denounces him as a traitor. Essex is arrested the next day.

February 19, 1601

Coke prosecutes Essex and Southampton for insurrection. Coke employs savage oratory against the defendants during the trial. Essex is convicted and, on February 25, executed. Southampton is convicted, but his sentence is later commuted to life in prison.

March 1601

Coke prosecutes other conspirators in the Essex rebellion.

1601

Bacon issues a book on Essex, A Declaration of the Practices & Treasons Attempted and Committed by Robert, Late Earle of Essex (1601), which he would later repudiate in large part in Sir Francis Bacon His Apologie, in Certaine Imputations Concerning the Late Earle of Essex (1604).

Coke prosecutes Twyne’s Case, bringing a criminal action against a debtor who commits a fraudulent conveyance to prefer one creditor over another.

1601–10

Coke grows more aloof from the bar; his professional rivalry with Francis Bacon, K.C., grows more intense.

August 1601

Elizabeth I visits Coke at his house in Stoke. He presents her with jewels and gifts worth over £1,000.

1602

Le Second Part des Reportes del Edward Coke and Le Tierce Part des Reportes are published by T. Wight. See pp. 37; 58.

1 Jac.

March 24, 1603

Elizabeth I dies. James VI of Scotland is proclaimed also as James I of England.

May 22, 1603

Edward Coke is knighted. In the months that follow, his wife Lady Elizabeth becomes a confidant of the new Queen, Anne.

Spring 1603

A Catholic plot forms to capture King James and to demand concessions for recusants. The plot includes Lord Cobham, a friend of Sir Walter Raleigh, whom Cobham, after his arrest, implicates in the plot, although Cobham later recants his claim.

July 25, 1603

James VI is crowned James I.

1603

James publishes a manifesto for his rule, Trewe Lawes of Free Monarchies (or, “True Laws of Free Monarchies”).

Thomas Bodley opens the restored library of the Duke Humfrey in Oxford, which in 1610 will become a repository of all copyrighted books in the realm.

1603–5

English deforestation drives lumber prices too high to use wood for industrial fuel, promoting the industrial use of coal.

Summer 1603

London is in the grip of the plague.

November 17, 1603

Coke’s nadir. He prosecutes Sir Walter Raleigh for treason, employing disgraceful invective and unfair tactics, which later contribute to the stay of Raleigh’s execution. Raleigh is imprisoned in the Tower until 1616, when he is released to prosecute a gold-stealing expedition against Spanish Guyana. It is a politically embarrassing failure, and James in 1618 would enforce the suspended death warrant, and Raleigh would be executed.

1604

The fourth volume of the Reports is published by T. Wight. See p. 93.

performed.

1605

The fifth volume of the Reports is published by the Companie of Stationers. See p. 125.

Argument of the Articuli Cleri. Archbishop Bancroft calls the law judges to answer for prohibitions against the Church. While the written answers are attributed to the law judges, the hand of Attorney General Coke may well have guided their pen.

El Ingenioso Hidalgo Don Quixote de la Mancha, the first part of Cervantes’s masterpiece, with its ironic but profound homage to the ideals of feudal knight errantry, is published in Spain; it reaches England in translation in 1612.

John Cowell publishes his treatise on English law based on Roman law, Institutiones Juris Anglicani ad Methodum Institutionum Justiniani.

Orlando Gibbons becomes organist of the Chapel Royal.

November 4, 1605

Outside a cellar under the House of Lords, Guy Fawkes is discovered with a slow match and thirty-six barrels of gunpowder, intending to blow up Parliament during James’s state opening on November 5. Sir Robert Catesby has devised the plot, carried out with six Roman Catholic conspirators.

January 27, 1606

Coke examines and prosecutes Fawkes, Catesby, and the other Gunpowder plotters; although he develops the clear evidence of their guilt, he also is, again, unusually cruel. They are all executed.

1606

A. Islip for the Companie of Stationers publishes a table summarizing the first five volumes of the Reports. A series of updates will follow, culminating in this series in Fasiculus florum, Or a Handfull of Flowers Gathered out of the Severall Bookes of Sir E. Coke in 1618.

Ben Jonson’s comedy Volpone is first performed.

Australia is discovered, by the Dutch.

In Bates’s Case, Coke and Chief Justice Popham uphold the power of the King to slap a tariff on imported currants, upholding the opinion of the Barons of Exchequer that the King could regulate trade only if the regulation was in the public interest; this is an opinion that Coke would later regret. See p. 441.

March 28, 1606

Trial of Henry Garnett, English Superior of the Jesuits, for concealing the Gunpowder Plot. Coke prosecutes. Garnett confesses to knowing of the plot under the seal of confession. Based largely on testimony from jail-house spies, Garnett is convicted of misprision of treason and executed.

March-April 1606

Coke assists Popham in drafting the First Royal Charter of the new Virginia Company, a charter that assures that British subjects in the colony and their children born there “shall have and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.” This promise is renewed in the Charter of 1609 and later charters.

June 20, 1606

Coke is created Serjeant at Law, an honorific granted by the Crown, which was necessary to serve as a senior judge. The memorial rings he had engraved to give to senior lawyers are inscribed Lex est tutissima cassis, or “Law is the safest helmet,” an abbreviation for a whole maxim: “Law is the safest helmet; under the shield of law no one is deceived.”

Coke is made Chief Justice of the Court of Common Pleas, on the same day he is created Serjeant.

August 4, 1606

Coke presides at the Assizes at Norwich. He charges jury to punish corrupt officials. See p. 521.

Coke assists the Chancellor in settling the rights of Prince Henry to manors in the Duchy of Cornwall, taking the manors from the grantees who had been given them in fee by Elizabeth. Coke had brought the case as Attorney General.

The sixth volume of the Reports is published by the Companie of Stationers. See p. 149.

John Smith leads 120 colonists to settle Virginia.

1607–8

Coke begins judicial battles with the church court called the High Commission, which punishes crimes against church obedience: Prosecutions in the Commission had been stopped by prohibitions from the common law courts. Coke rules that the Commission is limited to ecclesiastical matters and can be prohibited by the law courts from disciplining a lawyer who argued before the Commission, who had applied to the law courts for a prohibition. See High Commission, p. 42cell, Langdale’s Case, p. 471, Nicholas Fuller’s Case, p. 454, Premunire, p. 447.

1607–12

In a series of cases, Coke and the judges of Common Pleas rule that the Court of High Commission has no authority to arrest laymen and that a layman who resists arrest by a pursuivant, an official of the Commission, and kills him is not guilty of murder. They issue prohibitions against the Commission, enjoining them from imprisoning people, and they grant release by habeas corpus to others. See Anthony Roper’s Case, p. 461, Case de Modo Decimandi, p. 505; High Commission, p. 425. Similar orders are entered against a variety of local courts, particularly that in York, for exceeding their jurisdiction or deciding cases without giving the degree of legal protection required. These prohibitions will set the law courts on a political collision course not only with the church and nobles but also with the King, who was pleased by the absolutist doctrines of the church courts and whose courtiers controlled the local courts.

1608

A Parliamentary commission assigned in 1603 to determine the rights in England of a Scot born after James’s kingship in England fails to resolve the question, and a test case is created by Parliament to resolve the issue in the courts. In Calvin’s Case, or the Case of the “Post Nati,” Coke, with a large majority, accepts the King’s view and agrees that Scots born after the accession of James VI as James I of England are born subject to the same sovereign and so entitled to the privileges of native English subjects. This case would have far-reaching effects as the basis for extending the law over colonial subjects. See p. 166. Prompted largely by the significance of Calvin’s Case, Coke prepares the seventh volume of the Reports, which is published by the Companie of Stationers. See p. 161.

In response to the Archbishop of Canterbury’s complaint to the King of the prohibitions of the High Commission, James moves to resolve the case himself. Coke both defends his answer in Fuller’s Case and argues against the King’s acting as a judge of law. Moving from a traditional rationale for such prohibitions that the law judges are agents of the King, Coke asserts that the law is itself the essential measure of such cases and that judges, not the King, interpret the law, which is not based on reason in general but based on the artificial reason of past cases applied by legal custom. In response to Coke’s statements a furious James nearly strikes him; Coke falls on all fours and begs his pardon, and Cecil, the Lord Treasurer, intervenes to distract the King. See Prohibitions del Roy, p. 478.

November 24 and 26, 1608

Nicholas Fuller’s cause is heard by the King’s Bench, which finds him guilty of schism; he is fined and imprisoned for nine weeks. See p. 454.

December 9, 1608

John Milton is born.

February 1609

Coke is summoned by the King to explain the fifty or sixty prohibitions entered against the court of the President of York, about which the King “had conceived great displeasure.” Coke describes the legal infirmities of three or four representative cases, apparently to James’s satisfaction. See Prohibitions, p. 501. Later that year, he appears to have been called again to a second conference on the same question.

May-July 1609

The King holds a conference of all the judges and the Privy Council on the jurisdiction of the church court of High Commission and law courts. The particular object of the debate is over the exaction of the modus decimandi, a special form of tithe, or customary tax paid to the church, and the question is whether jurisdiction to enforce this payment is to be in the church courts or the law courts, Coke arguing that only Parliament could put them elsewhere. The debate rages over several meetings, Coke convincing James that the High Commission should rule only on serious offences of church law. See de Modo Decimandi, p. 505.

Parliament is in session. Coke is Chief Justice, and so an ex officio adviser to the Lords, but is not active.

1610

Coke rules that a prohibition should not be given to a party after a ruling has been made in the Spiritual Court.

July 7, 1610

Parliament sends an address to the Crown, noting that James’s Royal proclamations had affected the liberty and property of subjects and had changed laws and penalties. James agrees to sign a law forbidding new impositions by the Crown without the consent of Parliament.

September 20, 1610

Coke is summoned to the Council by the King to declare whether the King by proclamation can restrict building in London or regulate the trade in starch, necessary for ruffed collars. In one of his most significant attacks on the royal prerogative, Coke, with Chief Justice Fleming, Chief Baron Tanfield, and Baron Altham, refuses to answer without consulting other judges, after which he issues an opinion admitting the King may require subjects to obey the law but cannot extend his prerogative beyond its legal bounds, cannot create new crimes, and cannot enlarge the criminal jurisdiction of Star Chamber. See Proclamations, p. 486.

Fall 1610

The Royal College of Physicians fines Thomas Bonham, a Cambridge medical graduate, for practicing medicine near London without a license from them to do so. The College arrests and jails him when he does not pay the fine and continues to practice. Coke, with Judges Warburton and Daniel, rules that the College could not enforce a monopoly by acting as judge in a case to which it is a party. In discussing the power of the College under its Parliamentary authority, Coke makes one of his most famous statements, “The common law will control Acts of Parliament, and sometimes adjudge them utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.” See Dr. Bonham’s Case, p. 264.

1610–15

Despite the King’s exasperation, his respect for Coke remains strong. Coke becomes a friend and mentor to Prince Charles.

1611

The Parliament is finally dissolved on February 9, 1611. The eighth volume of the Reports is published by the Companie of Stationers. See p. 244.

William Byrd publishes his last work, Psalmes, Songs, and Sonnets.

In an effort by the new Archbishop and the King to mute Coke’s criticism of the High Commission, Coke is appointed to a newly reorganized High Commission. In an October meeting of the Commission, however, Coke refuses to sit with it, claiming not to have seen the articles for the new body, pleading ignorance of what the Commission does and arguing it was a problem not for the Court of Common Pleas but for the King’s Bench. While nothing is resolved that day, the matter seems not to have been further pressed by either side. See High Commission, Appendix I, p. 1307.

The authorized edition of the Bible, often called the King James Version, is published.

April 1611

Archbishop Abbot is installed as the new Archbishop of Canterbury.

1612

Coke prohibits extra-jurisdictional proceedings by the Lord President of Wales and by the Lord President of the North, and he reverses attempts in the Court of Marshalsea to act beyond its jurisdiction. He also prohibits the Archbishop of York from suing for a debt in the Court of Exchequer at York.

May 24, 1612

Robert Cecil, Earl of Salisbury, Lord Treasurer, Secretary of State, and Master of Wards, and Coke’s friend and supporter, dies. A series of maneuvers in the royal court, in which Bacon moves sharply against Coke, follow over the next year.

1613

The ninth part of the Reports is published by the Companie of Stationers. See p. 287.

Coke is made a member of the Privy Council.

October 25, 1613

James acts on Bacon’s advice to reduce Chief Justice Coke’s income and power by a promotion to the superior but less significant Court of the King’s Bench, a nominal promotion but actually an attempt to silence him. Attorney General Hobart is promoted to Chief Justice of the Court of Common Pleas, and Bacon becomes Attorney General.

1614

Coke’s oldest son, Robert, marries Lady Theophila Berkeley.

Chief Justice Hobart rules, in Day v. Savage, “Because even an Act of Parliament, made against natural equity, as to make a man Judge in his own case, is void in itself, for Jura nature sunt immutabilia, and they are leges legum.”

The “Addled Parliament” begins session, but the assembly is heavy with Puritans and lasts only a few weeks before being dismissed, accomplishing nothing.

James, short of funds without a Parliamentary grant of supply, demands “benevolences,” or gifts of money from the great men. Coke gives an unusually large amount, £200. Coke writes that benevolences are not illegal because they are not taxes but offerings of free will. See Exaction of Benevolence, p. 496.

Bacon prosecutes Peacham, an old clergyman, for treason, on the basis of a drafted but undelivered sermon found by agents who broke into his house. The sermon held that subjects may, in rare circumstances, resist a sovereign attempting to subvert their liberties. Peacham refused to confess treason, despite torture on the rack. Bacon seeks from Coke an opinion on the legality of the charge, prior to the trial. Coke refuses to give an opinion that does not follow the forms of argument, conference, and vote of the bench, and when his view is finally given, he decides (much to Bacon’s shock) that Peacham has not committed high treason. At a trial six months later before a hostile bench, Peacham is found guilty, although his execution is not carried out, and he dies in prison.

Coke publishes his Book of Entries, a collection of forms for pleading. See p. 567.

John Selden publishes his first major book, Titles of Honour.

The tenth part of the Reports is published by the Companie of Stationers. See p. 326.

Cambridge University elects Coke to be High Steward, an honorary office.

James meets George Villiers, later the Duke of Buckingham, who would become the King’s favorite, perhaps his private consort, effectively controlling patronage and royal authority for both James and, later, Charles I. Buckingham’s influence was necessary for anyone in Court to advance in title; his influence would lead to several disastrous wars with Spain and France and to the fall from popularity of Charles with the people and nobility, and would hasten the English Civil War.

1615

Coke rules that the Common Law makes treason of suggesting the murder of the King.

The eleventh part of the Reports, the last volume of the Reports to be published while Coke lived, is published by the Companie of Stationers. See p. 384.

1616

Sir Thomas Overbury is murdered by agents of his wife. James seeks to shield the murderers, the Countess of Essex and Robert Carr, James I’s former favorite and Earl of Somerset. Coke examines over 300 witnesses, proving Essex and Somerset had instigated the poisoning. Although his prosecution is universally praised, rumors circulate that he has also discovered evidence of other crimes and suspicious events, including the death in 1612 of Henry, Prince of Wales, rumors fanned by Coke’s dismissal the next year.

Captain James Smith, the leader of the Virginia Colony at Jamestown, publishes A Description of New England. Besides the regular run, Smith specially prints two copies with presentation title pages, one copy for Ellesmere and one “For the Right Honorable Sir Edward Coke, Lord Chiefe Justice of England.”

Ben Jonson writes Underwoods, including an homage to Coke (at LXV), who of all the King’s servants there were none “whom fortune aided less nor virtue more,” when “being the stranger’s help and the poor man’s aid, Thy just defenses made th’ oppressor afraid.”

Ellesmere, the Lord Chancellor, grants an injunction against a judgment obtained by fraud from the King’s Bench. Coke seeks to have the party who was enjoined from his judgment bring an indictment for the crime of praemunire (improperly using church procedures) against the original defendant. The grand jury refuses to indict.

James asserts the power to grant commendams, temporary church appointments that have revenues assigned to bishops.

April 1616

Deaths of William Shakespeare and Miguel de Cervantes Saavedra.

April 25, 1616

Bacon acts for James to assert the prerogative of Rege inconsulto, that he has the power to advise judges before they rule, and orders them to stay their judgment until he advises them. Coke and the judges rule, sending a letter to James that they must do the law, and that they did it.

June 6, 1616

James summons the bench and condemns them all for allowing lawyers’ insolence in questioning his power. All twelve, including Coke, fall to their knees and beg his pardon, but in Coke’s finest hour, he refuses to admit that the King had a prerogative to command him to stay the proceedings, which would violate his oath as judge. Bacon and Ellesmere argue that Coke was obliged to wait on the King’s counsel, a point the other law judges concede. Abandoned by his fellow judges, Coke answers that his obligation is “to do that which shall be fit for a judge to do.” James suggests that what the judge should do is to know and administer the ancient law, an injunction that well describes Coke’s later project of the Institutes. See Commendams and the King’s Displeasure, p. 1310.

June 20, 1616

James I rules the Chancellor has jurisdiction for the injunction over the law courts.

Mid-June 1616

Coke denies Buckingham, the royal favorite, the power to assign a new holder as the office of chief clerk in the Court of Common Pleas, keeping the position for judicial assignment.

June 26, 1616

Coke is summoned to the Privy Council and charged with various offenses, including failing to pay a debt to the Crown he accepted from his father-in-law, Christopher Hatton, extending his jurisdiction too far through praemunire, and insulting the King in the commendams matter. Coke’s defense falls on deaf ears. See Coke’s Hearing, 1616, p. 1323.

June 30, 1616

Lord Treasurer Suffolk, on behalf of the Privy Council, orders Coke to be sequestered in chambers, to be barred from riding as a judge on circuit to hold assizes in outlying cities, to revise his Reports and prepare them for censorship by the king, not to call himself “Lord Chief Justice of England” but only Chief Justice of the King’s Bench, and not to let his coachman ride without his hat.

October 2, 1616

Coke reports to the Privy Council that he has repaired the Reports, listing five quite minor corrections. The primary charge was against Coke’s report in Dr. Bonham’s Case, in which he made no real changes. Bacon continues to agitate for his dismissal.

October 17, 1616

At another hearing, Coke is advised to consider five new points in his Reports. Bacon draws up a list of Coke’s moves against the King’s powers and favorites, which he sends the King.

November 14, 1616

James resolves to remove Coke from the bench for his “perpetual turbulent carriage.”

James issues a supersedeas, drafted by Bacon, which removes Coke as Chief Justice of the King’s Bench: “For certain causes now moving us, we will that you shall be no longer our Chief Justice to hold pleas before us, and we command you that you no longer interfere in that office, and by virtue of this presence, we at once remove and exonerate you from the same.”

November 18, 1616

Henry Montague is sworn in as Chief Justice of the King’s Bench by a triumphant Ellesmere, who admonishes Montague to remember “the removing and putting down of your late predecessor, and by whom: the great King of Great Britain.”

1616–21

Coke is given no major positions but is assigned a series of Star Chamber prosecutions of Dutch merchants exporting coin, of Lord Treasurer Suffolk on charges of bribery, and of Attorney General Yelverton, on political grounds. He is assigned to royal commissions on banishing Jesuits and seminarians, on negotiating a treaty with the Dutch regarding East Indian trade, on inquiring into fines owed as taxes on manors, and on examining the trade in weapons to foreign lands.

1617

Coke and Lady Elizabeth have a prolonged, very public fight over the control of their properties.

March-July 1617

In a blatant move to restore his fortunes at court, Coke contrives to marry his daughter Lady Frances to Sir John Villiers, the penniless brother of Buckingham, the royal favorite. Without consulting his wife or daughter, Coke offers her hand to Villiers, who is twice her age but smitten with her beauty and wealth. Lady Elizabeth hides her daughter and tries to marry her to the Earl of Oxford by a ruse based on a forged letter from him. Coke gets a search warrant and leads an armed party to Oatlands, a summer house of his wife’s cousins, breaking in and taking Frances by force back to his house, Stoke Pogis. Bacon attempts to intercede with Buckingham and the King to prevent the marriage. Bacon, on a charge by Attorney General Yelverton, prosecutes Coke in the Star Chamber for kidnapping. Lady Elizabeth attempts to take her daughter back but fails, and she also is prosecuted and jailed. The King and Buckingham side with Coke, and the King chides Bacon for jealousy. Bacon supports the match.

September 29, 1617

Lady Frances and Sir John Villiers are married. James I gives her away. Coke provides a dowry of £10,000. Lady Elizabeth acquiesces, from prison. Lady Frances will later elope with Sir Robert Howard, fleeing the country in man’s clothing, give birth to a bastard son, and die abroad.

Late 1617

Coke is restored to the Privy Council.

November 2, 1617

Lady Elizabeth is released from her imprisonment(in a London alderman’s house) and renews a life dedicated to ridiculing her husband.

1619 (circa)

William Harvey discovers the role of the heart in the circulation of blood.

1620

Coke is made a Lord Commissioner of the Treasury.

Coke is elected to the new Parliament in an honest election for the borough of Liskeard, Cornwall.

Bacon publishes his book on philosophical method, Instauratio Magna, also known as Novum Organum, in which he attacks the sufficiency of most general principles as a basis for deduction, to great critical acclaim.

November 21, 1620

A group of 102 radical Puritans of the English Separation Church land well off course from their target in Virginia. They found Plymouth Colony in Massachusetts Bay and would become known as the “Pilgrim Fathers,” following a speech by Daniel Webster in the nineteenth century. Tradition suggests that they carried a copy of Coke’s First Institute among their possessions on their ship, the Mayflower.

January 30, 1621

Parliament commences.

January-June 1621

A Bill for Supply, a request by the King for the Commons to grant him funds, is moved by Secretary Calvert. Coke, de facto leader of the opposition in Commons, moves that the request for supply and the petition for grievances against Parliament’s privileges be referred together to a committee of the whole House. Coke presents a defense of Parliament based on Magna Carta. He is assisted in his efforts throughout the Parliament by John Selden, who is not then a member.

Coke attacks a parliamentarian named Sheppard, who is expelled from the House for arguing against a Puritan-sponsored bill to ban dancing on the Sabbath, which he held should be Saturday.

Coke assists in several impeachments, including proceedings against Bacon for twenty-eight charges of misconduct as Chancellor, mainly by accepting gifts of money from litigants before him (although many of these donors lost their cases). Bacon is fined £40,000, banished from office and Parliament, and imprisoned in the Tower, although his fine is later remitted and he serves just one day. The King would pardon him in 1624.

Coke supports bills for free trade and against monopolies.

James suggests that Parliament be suspended from May to November, which Coke opposes as against Parliament’s privileges to decide on its adjournment, even though the King could dismiss it. Coke succeeds in obstructing a royal commission requiring adjournment of the Commons, after which a majority of the House vote to adjourn. See p. 1194.

June 21, 1621

On Coke’s recommendation, Roger Williams, a future champion of religious tolerance and leader cellf the colony of Rhode Island, is admitted to be a scholar in Sutton’s Hospital, a school later named Charter House. Williams would later serve as a copyist for Coke, recording hearings in Star Chamber and elsewhere. He later attends Pembroke College, Cambridge, and appears to have briefly studied law under Coke before emigrating. See Sutton’s Hospital, p. 347.

1621

Robert Burton publishes The Anatomy of Melancholy.

November- December 1621

Parliament returns. Coke moves Parliament to pass resolutions to the King advising him against an alliance, through marriage, with Spain. The King orders the House not to discuss such matters and denies them any privileges by right. Coke authors a protestation arguing for the liberties of Parliament, including parliamentarians’ freedom of speech, as “the ancient and undoubted birthright and inheritance of the subjects of England.” See p. 1214.

December 14, 1621

Coke is passed over for Lord Treasurer when a raft of new judges is appointed.

December 18, 1621

The Protestation is enrolled in the House Journal.

December 27, 1621

James sends Coke, John Selden, William Prynne, and other leaders of the opposition to the Tower. Coke’s house, Holborne, is sealed and his legal papers are seized. See Coke’s Arrest after Parliament, p. 1329. His failure to pay Christopher Hatton’s debt is again revived, this time in the Court of Wards, but over the following months, no evidence of disloyalty can be produced against him.

December 28, 1621

The King prorogues Parliament, or suspends it until the next term. He orders the Journal be seized, and tears the Protestation Coke had drafted from it with his own hands.

January 6, 1622

James dissolves Parliament.

1622

While in the Tower, after several months’ confinement without books, Coke’s conditions are mediated; he apparently begins work on his commentary on Littleton’s Tenures, which will become the First Institute.

August 1622

Following intercession by Prince Charles with James, Coke is paroled, but he is dismissed as a privy councillor.

1622

Architect Inigo Jones, Surveyor of the King’s Works, completes the new Banqueting House at Whitehall in the Palladian, or Italian Renaissance style, marking the effective end of the age of English perpendicular gothic buildings.

1623

Shakespeare’s First Folio is published.

Coke is named to a commission in Ireland, as a form of banishment. He responds by agreeing to “discover and rectify many great abuses” and is allowed to remain at home.

February 1624

Coke enters the new Parliament as an ally of Buckingham, with whom he is briefly reconciled. Coke successfully promotes acts abolishing monopolies and creating a system of patents for the protection of inventors’ rights in their inventions.

May 1624

Coke conducts the impeachment of the Lord High Treasurer Lionel Cranfield, Earl of Middlesex, an opponent of Buckingham, for bribery. Cranfield is banished from office, fined £50,000, and sent to the Tower.

May 29, 1624

Parliament ends. Coke returns to Stoke Pogis to write, although he is restored to the Privy Council.

March 27, 1625

James I dies.

1 Car.

March 27, 1625

Charles I becomes King, at the age of 24.

1625

Dutch law scholar Hugo Grotius publishes De Jure Belli ac Pacis, or On the Law of War and Peace.

London and other cities are in the grip of a severe plague outbreak.

June 22, 1625

A new Parliament is formed. Coke begins the first Parliament of the new King moderately, without his by-then customary motion for the first day from the last two parliaments, with a motion to appoint a committee of grievances. However, Coke soon opposes heavy taxes and joins opposition to the Duke of Buckingham, the favorite.

November 1625

Charles I appoints Coke, then aged 73, as Sheriff of Buckinghamshire, thus barring him from sitting in Parliament, because sheriffs are required by statute to remain in their counties. The same trick is played on Edward Alford, William Fleetwood, Sir Francis Seymour, Sir Robert Phelips, Sir Guy Palmes, and Sir Thomas Wentworth, opposition leaders in earlier parliaments. Coke refuses to take the ancient oath as sheriff, which he claims is anti-Protestant. The judges administering it agree with him in part, but he is ordered to take most of it, and so he must serve. See Sir Edward Coke’s Case (The Sheriff’s Oath), p. 1332.

February 2, 1626

Charles I is crowned king.

February 10, 1626

Coke returns to Parliament, elected from Norfolk. The King questions the ability of Coke and other sheriffs to be seated. Parliament appoints a committee to examine their election and privilege, which relies in part on an earlier statement of Coke’s to determine that sheriffs cannot sit. Coke returns home and spends his time drafting his Institutes.

March 1626

Francis Bacon, while driving through a London suburb wondering whether refrigeration could preserve meat, stops his carriage, purchases a hen, and stuffs it with snow; he contracts bronchitis and dies on April 9.

June 15, 1626

Parliament, including Coke’s son Clement, having been fairly obstreperous, is dissolved. On its last day it passes a resolution to consider Coke a de facto member, entitled to the privileges of a member against lawsuits.

1627

Charles, embroiled in an expensive and losing war with Spain and in want of money, orders all knights to lend him money and orders the arrest of the many who don’t pay as well as those who won’t collect it.

November 22, 1627

Argument of The Five Knights’ Case, in which four lawyers, led by Selden, defend Sir Thomas Darnel, Sir John Corbet, Sir Walter Earle, Sir John Heveningham, and Sir Edward Hampden, who had been committed to prison for not paying forced loans and who had sought release by habeas corpus, claiming that they could not be imprisoned unless they had violated a law passed by Parliament. Selden and others mount a defense of this point from Magna Carta that would bar the Privy Council from ordering imprisonment without a prior statute. The King’s Bench refuses to grant the bail requested under the habeas, and refuses to keep them there without more from the King. The prisoners linger until the seventy-six who refused to pay are all released on January 2, 1628.

1628

The First Part of the Institutes of the Lawes of England, or, A Commentarie upon Littleton, is published by the Companie of Stationers. See p. 573. Coke is elected from Buckinghamshire and, separately, elected from Suffolk to a new Parliament. The Commons is heavy with opposition and legal talent, including Thomas Wentworth, John Selden, William Noye, his co-counsel from the Five Knights’ Case, the lawyers John Pym, John Eliot, and Duddley Digges, as well as the young, still-obscure Oliver Cromwell.

March 17, 1628

Charles I’s opening address warns members not to be foolish and interfere in his affairs.

March-June 1628

Coke moves for a Parliamentary committee of the whole to consider grievances and supply. He argues for the protection of habeas corpus, moving for a Petition of Right. The House of Lords introduces an amendment to save the “sovereign power of the Crown.” Coke persuades Commons to defeat the amendment, and the Lords to agree with its removal. The King, advised by Buckingham, gives an evasive answer that would not amount to acceptance of the Petition as law. Coke denounces Buckingham as the cause of the King’s insult to the House. The Lords and Commons make a joint address to Charles I, asking him to assent. Charles I assents to the Petition of Right as a statute of the realm. A supply bill is passed. See p. 1225.

June 26, 1628

Charles I prorogues Parliament.

August 23, 1628

Buckingham, Charles I’s favorite and closest adviser, who has been largely responsible for the war with France and has personally led a disastrous military campaign to relieve the Huguenots of La Rochelle, is assassinated. The masses in London celebrate.

January 21, 1629

Parliament recommences briefly. Coke does not attend.

1629–34

Although the idea has long been with him, and manuscript parts of the Institutes, particularly the commentaries on Magna Carta, had been written prior to 1621, Coke is believed during this period to have prepared the manuscripts for the Second, Third, and Fourth Institutes for publication.

1630

John Winthrop and approximately a thousand Puritans sail for Massachusetts.

May 3, 1632

Coke’s horse stumbles, pinning him beneath; although Coke believes he is not hurt, he is. His daughter, the now-reconciled Lady Frances, returns home to nurse him.

August 29, 1632

John Locke is born.

1633

Third edition of the First Institute is printed by M.F.I.H. and R.Y. Assignes of I. More.

Hearing a rumor that Coke is dead, Lady Elizabeth sends her brother to take possession of his house. He is not dead, and Lady Elizabeth must wait another year and a half.

Summer 1634

Coke grows ill.

September 1, 1634

Secretary of State Sir Francis Windebank and attendants arrive at Stoke Pogis to search for seditious papers on orders of the King and Privy Council. They find Coke on his deathbed and seize his manuscripts, will, and letters.

September 3, 1634

Coke dies, aged 82. He is buried in Tittleshall, next to Bridget, his first wife.

1635

Coke’s A Little Treatise of Baile and Maineprize is first published.

1640

Hobbes circulates his manuscript of The Elements of Law, Natural and Politic.

November 3, 1640

The Long Parliament commences.

May 12, 1641

Parliament gives to Coke’s heirs the right to publish the later volumes of the Institutes.

1641

The colonial General Court of Massachusetts adopts The Body of Liberties, which is thought to be based on Coke’s view of the law.

Coke’s The Compleat Copyholder is first published. See p. 563.

1642

Coke’s Second Part of the Institutes is first published. See p. 745.

1642–51

English Civil Wars.

1644

Coke’s The Third Part of the Institutes and The Fourth Part of the Institutes are first published. See p. 944 and p. 1053.

1647

General Court of Massachusetts Bay Colony orders the purchase of two copies each of Coke’s Reports, First Institute and Second Institute, and Book of Entries, as well as of two other law books. Coke’s books are the legal mainstay of all colonial libraries.

January 20, 1649

Charles I’s last armies and allies have been defeated in the field, and he is brought before a specially constituted high court of justice in Westminster Hall. Charged with high treason and “other high crimes against the realm of England,” the king refuses to recognize the court because “a king cannot be tried by any superior jurisdiction on earth.” Despite his refusal to plead, he states that he represented the “liberty of the people of England.” He is found guilty and, on January 27, sentenced to death.

January 30, 1649

Charles I is executed.

1651

Hobbes publishes Leviathan, or the Matter, Form, and Power of a Commonwealth, Ecclesiastical and Civil.

1653–59

Protectorate. Oliver Cromwell rules Britain.

1656

The Twelfth Part of the Reports is first published.

James Harrington publishes Oceana, a utopian and imaginative work of political theory, arguing for stable economy, stable laws, and a limited aristocracy.

1658

Oliver Cromwell dies.

1658–59

First English edition of the Reports, parts 1–11, is published.

1659

Certain Select Cases in Law, the thirteenth volume of Coke’s Reports, is published. See p. 499.

1 Car. 2

May 29, 1660

The restoration of the monarchy; Charles II is crowned.

1674

England’s Independency upon the Papal Power, a pamphlet drawn from Coke’s and John Davis’s writings, is published in London.

1681

A Dialogue between a Philosopher and a Student of the Common Law is published anonymously, although it is widely known to be the work of Thomas Hobbes. An extended criticism of Coke’s view of law, it presents a more moderate view of sovereignty than Leviathan.

1680

Henry Care publishes a tract strongly influenced by the Second Institute, English Liberties: Or, The Free-Born Subject’s Inheritance. This will go through several printings, including American printings in 1721 and 1774.

1 Jac. 2 February 6, 1684

James II is crowned.

1684

Edward Coke’s notes on Readings on Fines and Recoveries are first published.

1687

William Penn, the new governor of Pennsylvania, writes The Excellent Priviledge of Liberty & Property Being the Birth-Right of the Free-Born Subjects of England, a book heavily influenced by Coke’s writings.

1688

The Glorious Revolution.

1W&M

Feb. 13, 1689

William and Mary are crowned.

1690

John Locke publishes the Two Treatises of Government.

1701

Parliament passes the Act of Settlement, which bars Roman Catholics from the crown and, among many other limits on the royal prerogative, establishes judicial independence from royal dismissal.

1 Anne March 8, 1702

Anne is crowned.

1708

Thomas Wood, who would write his own Institutes of the Laws of England in 1720, based on Coke’s Institutes, argues for university lectures based on Coke’s works in Some Thoughts concerning the Study of the Laws of England in the Two Universities. A chair along such lines would be first established in Oxford fifty years later.

1711

The Conductor Generalis, a manual for justices of the peace and other legal officials, is first published in New York. As with George Webb’s 1736 The Office and Authority of the Justice of the Peace, published in Williamsburg, the book is influenced by Coke’s Reportsy and Institutes, as will be later manuals for justices of the peace.

1 Geo.

August 1, 1714

George I is crowned.

1 Geo. 2

June 11, 1727

George II is crowned.

1747

Thomas Coke, Sir Edward’s grandson, is made Viscount Coke and Earl of Leicester; this line becomes extinct on the death of Thomas, Lord Coke, and will be re-created in a later Thomas, Lord Coke, in 1837, whence the title continues.

1748

Montesquieu publishes L’Esprit des Lois, arguing, among other things, for separation of powers.

1758

Charles Viner’s chair in law, the first chair for lecturing on the Common Law in an English university, is filled by William Blackstone.

1 Geo. 3

October 25, 1760

George III is crowned.

1761

James Otis, a Massachusetts lawyer, argues from Bonham’s Case, Coke’s Institutes, the Petition of Right, and Magna Carta that crown writs of assistance (search warrants letting customs officers search any house for smuggled goods without limit) violate fundamental law. The Superior Court in Boston rejects his argument, one of the first causes of the American Revolution. The case is watched and reported by a young John Adams, who later bases the Fourth Amendment requirements of reasonable searches and limited warrants on Otis’s argument.

1762

A typical law student of the age, Thomas Jefferson is required to read Coke’s Institutes, particularly the First, with predictable results: “I do wish the Devil had old Coke, for I am sure I never was so tired of an old dull scoundrel in my life.”

1764

A new edition of Coke’s Law Tracts is published in London by B. W. Hawkins.

1765–69

William Blackstone’s four-volume Commentaries on the Laws of England is published in Oxford. It is published in 1770 in Philadelphia. The work is original, although it necessarily borrows a great deal from the Institutes. It is sufficiently more obliging of the power of Parliament and of the Crown that Thomas Jefferson would later despair when Blackstone is taught in lieu of Coke in the law school at the University of Virginia.

1776

American Declaration of Independence.

1778

The Virginia Supreme Court decides Philips’s Case, the first of several considerations of the doctrine of judicial review by state courts and federal circuit judges between independence and 1803.

1779

Judge George Wythe is appointed Professor of Law and Police in the College of William and Mary. He is the first university law lecturer in America. Both he and Judge Tapping Reeve, his later competition in Litchfield, Connecticut, teach their pupils from Coke’s Institutes and Reports.

1782

George Wythe, on the Supreme Court of Virginia, rules that the courts cannot enforce a governor’s pardon, or any law, that exceeds the limits of the state’s constitution.

1783

The Treaty of Paris ends American Revolution.

1787

U.S. Constitutional Convention. The new Constitution reflects many of the ideas of Coke’s arguments, including limits on the executive from legislative and constitutional tasks, limits raising of taxes to legislative branch, as well as provision for habeas corpus, impeachment of officials, and judicial independence by appointments for life subject only to legislative impeachment.

1789

The U.S. Constitution comes into force.

1791

The first ten Amendments to the U.S. Constitution are passed.

1796

U.S. Supreme Court in Hylton v. U.S. strikes down a tax on carriages as a violation of the uniformity clause of the Constitution of 1789.

1798

U.S. Supreme Court in Calder v. Bull posits a limitation of state statutes according to natural law. It is not followed in later cases.

1799

Coke’s Institutes and Reports continue, along with Blackstone’s works, to be the standard reading for new law students, although Coke’s works are hard going for poorly tutored pupils. Typical of the selftaught clerks studying in law offices, the future justice and professor Joseph Story writes of studying the First Institute: “I took it up, and after trying it day after day with very little success, I sat myself down and wept bitterly. My tears dropped upon the book, and stained its pages.” Only with tenacious effort did he eventually “comprehend and reason upon the text” and eventually, “when I had completed the reading of this most formidable work, I felt I breathed a purer air, and that I had acquired a new power.”

1803

Chief Justice John Marshall announces his opinion in Marbury v. Madison, that the U.S. courts cannot enforce an act of Congress that is “repugnant to the Constitution.” This case largely confirms judicial review as a principle of American constitutional law.

An Exact Abridgement of the Two Last Volumes of Reports. London: By H. Twyford and T. Twyford, 1670. (S.T.C. 4922)

An Abridgment of the Reports of the Learned Sir Edward Coke, Knight; the First Eleven Books Abridged by Sir Thomas Ireland, Knight; and the Two Last by Thomas Manley. 4th ed., rev. and cor. Dublin: By H. Watts, 1793.

——— The Reports, in Verse; Wherein the Name of Each Case and the Principal Points Are Contained in Two Lines. Edited by J. Worrall. London: By H. Lintot, 1742.

——— [Anr. ed., enl.]. London: J. & W. T. Clarke, 1825.

——— 3d ed., intro., J. Wesley Miller. London: R. Pheney [etc.], 1826.

——— Reprint of 1826 ed., Buffalo, New York: William Hein Corp., 1999.

Edition: current; Page: [lxxx]

IV.: Declarations and Pleadings (from the Reports)

The Declarations and other Pleadings Contained in the Eleven Parts of [his] Reports. London: For W. Lee, D. Pakeman, and G. Bedell, 1659. (Declarations and Pleadings contained in his eleven books of Reports orabridgments of the Reports, which were printed in 1650, 1658, and 1680, were wanting.) (S.T.C. 4917)

V.: The Institutes of the Laws of England

A.: The First Institute of the Laws of England, or a Commentary upon Littleton

The First Part of the Institutes of the Lawes of England. Or, a Commentarie upon Littleton. London: In folio [A. Islip], for the Societie of Stationers, 1628. (S.T.C. 15784)

Littleton’s Tenures, in English: printed from the second edition of the Commentary of Sir Edward Coke. London: For W. Clarke and Sons, 1813.

A Systematic Arrangement of Lord Coke’s First Institute of the Laws of England: on the plan of Sir Matthew Hale’s analysis, with the annotations of Hargrave, Lord Chief Justice Hale, and Lord Chancellor Nottingham, and notes and references, by J. H. Thomas. London: Butterworth, 1818.

——— 1st American ed. from the last London ed., to which are added the notes of Charles Butler. Philadelphia: R. H. Small, 1826–27.

——— 2nd American ed. from the last London ed., to which are added the notes of Charles Butler. Philadelphia, A. Towar, 1836.

Ritso, Frederick. An Introduction to the Science of the Law Shewing the Advantages of a Law Education, Grounded on the Learning of Lord Coke’s Commentaries upon Littleton’s Tenures. London: W. Clarke and Sons, 1815.

Hobler, Francis. Familiar Exercises Between an Attorney and His Articled Clerk, On the General Principles of the Laws of Real Property: the First Book of Coke upon Littleton Reduced to Questions. To Which Is Added the Original Text and Commentary. London: E. Eedle, 1831.

——— 2d ed. 1838.

——— 3rd ed. 1847.

B.: The Second Institute of the Laws of England

The Second Part of the Institutes of the Lawes of England. London: By M. Flesher and R. Young, for E. D., R. M., W. L., and D. P., 1642. (S.T.C. 4948)

VI.: Speech and Charge at Norwich

The Lord Coke his Speech and Charge (at the Assises at Norwich). With a discoverie of the abuses and corruption of officers. Edited by R. Pricket. London: By R. Raworth and N. Okes for C. Pursett, 1607. (S.T.C. 5491)

X.: Three Law Tracts

Three Law Tracts: I. The compleat copyholder; being a discourse of the antiquity and nature of manors and copyholds, & c. II. A reading on 27 Edward the First, called the statute De finibus levatis. III. A treatise of bail and mainprize. Edited by W. Hawkins. London: By His Majesty’s Law Printer for J. Worrall, 1764.

——— Reprint. Abingdon, Oxon: Professional Books, 1982.

XI.: Later Reprints and Excerpts

Judges Judged Out of their own Mouthes. London: By W. Bentley, for E. Dod & N. Ekins, 1650. (S.T.C. 4938)

England’s Independency upon the Papal Power Historically and Judicially Stated by Sr. John Davis . . . and by Sr. Edward Coke . . . in Two Reports, Selected from their Greater Volumes. pref. by Sir John Pettus. London: by E. Flesher, J. Streater and H. Twyford, assigns of R. and E. Atkins, 1674.

Magna Charta: Made in the Ninth Year of K. Henry the Third, and Confirmed by K. Edward the First, in the Twenty-Eighth Year of His Reign with Some Short, but Necessary Observations from the L. Chief Just. Coke’s Comments upon it, trans., Edward Cooke. London: by the assigns of R. and E. Atkins, for T. Simmons, 1680.

The Great Charter of the Forest, Declaring the Liberties of it Made at Westminster, the Tenth of February, in the Ninth Year of Henry the Third, Anno Dom. 1224, and Confirmed in the Eight and Twentieth of Edward the First, Anno Dom. 1299: with Some Short Observations Taken out of the Lord Chief Justice Coke’s Fourth Institutes of the Courts of the Forests. London: Printed by the assignees of R. and E. Atkins for John Kidgell, etc., 1680.

A Declaration of the Libertyes of the English Nation, Principally with Respect to Forests. London: Printed for Richard Janeway, etc., 1681.

The Famous Case of Robert Calvin, A Scots-man: as Contain’d in the Reports of Sir Edward Coke, Lord Chief Justice of the Common-pleas, and as it was Argued in Westminster-Hall by All the Judges of England in the Reign of King James VI of Scotland and I of England. Edinburgh: James Watson, 1705.

A Vindication of the Lord Chancellor Bacon, from the aspersion of injustice, cast upon him by Mr. Wraynham: containing the said Mr. Wraynham’s representation of his own case, and the sentence pronounced against him. Together with the learned speeches of the judges, Hubbert, Coke, and other sages in the law. Archbishop Aboot, and other reverend prelates. The Lord Chamberlain, Earl of Arundel, Sir Fulk Crovill, and other noble peers. Now first published from the original manuscript. London: For J. Peele, 1725.

The Corner Stone of the British Constitution Or, the Golden Passage in . . . Magna Charta, with Lord Coke’s Remarks. From Second Institute. London: 1789.

Edition: current; Page: [lxxxviii]Edition: current; Page: [lxxxix]

Mottoes and Crests of Sir Edward Coke

The inscription on rings, which Edward Coke distributed according to custom to commemorate his being called to become Serjeant at Law:

Lex est tutissima cassis

(Law is the safest helmet)

This is a shorthand for a maxim: “Law is the safest helmet; under the shield of law no one is deceived.”

His Crest:

His Motto:

Prudens qui patiens

(The prudent man is patient)

This is an abbreviated form of the fuller motto:

Prudens qui patiens etenim durissima coquit

(The prudent man is a patient man, which aids him in the digestion)

The motto is a pun built on the similarity of Coke’s name to the Latin for “digestion,” which also accounts for his choice of the ostrich as an heraldic animal. The ostrich was, at that time, believed to have a digestion so strong that it could eat iron, which explains the horseshoe in its beak.

Edition: current; Page: [lxxxx]Edition: current; Page: [1]

I: Reports

Edition: current; Page: [2]Edition: current; Page: [3]

Part One of the Reports

The Reports are a monumental achievement. Their scope, detail, and organization, particularly in the volumes from four to eleven, created a platform from which the whole organization of the Common Law could be perceived. The emphasis in early volumes of cases in which Coke took part and of cases that were particularly prominent in settling issues of the law governing inheritance and land ownership increased the fame both of Coke and of his Reports. For centuries, lawyers of the common law have referred to all reports printed under the name of the reporter by the name of that person, save one. Coke’s Reports have maintained such a place in the Common Law that they alone are referred to as “The Reports.”

The First Part of Sir Edward’s Reports was published in 1600. It was originally entitled Les Reports De Edvvard Coke L’ Attorney Generall Le Roigne De Divers Resolutions, & Judgements Donnes Avec Graund Deliberation, per Les Tres Reverendes Judges, & Sages De La Ley, De Cases & Matters En Ley Queux Ne Fueront Unques Resolve, Ou Ajuges Par Devant, & Les Raisons, & Causes Des Dits Resolutions & Judgements, which is to say in English The Reports of Edward Coke, Attorney General of the Realmof Divers Resolutions and Judgements given upon Solemn Arguments, and with great Deliberation, and Conference of the most Reverend Judges, and Sages of the Law; of Cases in Law which never were Resolved or Adjudged Before; And the Reasons and Causes of the Said Resolutions and Judgements. Coke had circulated manuscript reports of some cases prior to the printing. The whole of the cases in this part presents a series of issues in the control, transfer, and obligations arising from the ownership of property, particularly as these issues had been altered by acts of Parliament, or were limited by ancient rules of the Common Law. There is a considerable emphasis on the style and content of pleading, or its effect on the dispute, and Coke reprinted some of the very extensive pleadings filed in connection with many of the cases.

Edition: current; Page: [4]

The Preface to the Reader.

Nothing is or can bee so fixed in mind, or fastened in memorie, but in short time is or may bee loosened out of the one, and by little and little quite lost out of the other: It is therefore necessarie that memorable things should be committed to writing (the witnesse of times, the light and the life of trueth) and not wholly betaken to slippery memorie which seldome yeeldeth a certain reckoning: And herein our present time is of all that ever was to futureposterity the most ungratefull; For they of former (though not of such florishing time) to the great benefit of themselves, of us, and our posterity, have faithfully and carefully registred in Bookes, aswell the sayings as the doings which were in their time worthie of note and observation. For omitting others, and taking one example for all, howe carefully have those of our profession in former times reported to ages succeeding, the Opinions, Censures, and Judgements of their reverend Judges and Sages of the Common Lawes: which if they had silenced and not set forth in writing, certainely as their bodies in the bowells of the earth are long agoe consumed, so had their grave Opinions, Censures, and Judgements been with them long sithence wasted and worne away with the worme of oblivion: But wee, as justly to bee blamed, as the thing it selfe to bee bewayled, having greater cause, are lesse carefull, having better oportunity, are lesse occasioned, and being in greater necessitie, are of all others the most negligent, whom neither the excellencie and perfection of knowledge, a thing most pleasant, nor the practise thereof in furtherance of Justice, a thing most profitable (although one great learned and grave man1 hath made an enterance) can among so many in this flourishing spring time of knowledge move any other to follow his example: The neglect whereof is in mine opinion many waies dangerous, For I have often observed, that for want of a true and certain Report the case that hath been adjudged standing upon the racke of manie running Reports (especially of such as understood not the state of the Question) hath been so diversly drawne out, as many times the true parts of the case have been disordered & disjointed, and most commonly the right reason & rule of the Judges utterly mistaken. Hereout have sprung many absurd & strange opinions, which being caried about in a common charme, & fathered on grave & reverend Judges, many times with the multitude, & Edition: current; Page: [5] sometimes with the learned receive such allowance, as either beguile or bedasil their conceits & judgements. Therfore as I allow not of those that make memory their storehouse, for at their greatest need they shall want of their store; so I like not of those that stuffe their studies with wandring & masterlesse Reports, for they shall find them too soone to lead them to error. In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation: Scribe sapientiam tempore vacuitatis tuae.2 And yet he that at length by these meanes shall attaine to be learned, when he shall leave them off quite for his gaine, or his ease, so one shall he (I warrant him) lose a great part of his learning: Therefore as I allow not to the Student any discontinuance at all (for he shall lose more in a month than he shall recover in many:) So doe I commend perseverance to all, as to each of these meanes an inseparable incident. I have sithence the xxii. yeere of her Majesties Raigne, which is now xx. yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell, & acquainted with the estate of the Question) as have been adjudged upon great & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine owne private use, as to denie the request of any friend to have either view or copy of any of them; So til of late I never could be perswaded (as many can witnes) to make them so publique, as by any intreaty to commit them to print: But when I considered how by her Majesties princely care and choice, her Seates of Justice have beene ever for the due execution of her Lawes, furnished with Judges of such excellent knowledge and wisdome (whereunto they have attained in this fruitfull spring time of her blessed raigne) as I feare that succeeding ages shall not affoord successors equall unto them, I have adventured to publish certaine of their resolutions (in such sort as my little leasure would permit) for the helpe of their memory who heard them, and perfectly knew them, for the instruction of others who knew them not, but imperfectly heard Edition: current; Page: [6] of them, and lastly, for the common good, (for that is my chiefe purpose) in quieting & establishing of the possessions of many in these generall cases, wherein there hath bin such variety of opinions. In these Reports I have (of purpose) not observed one methode, to the end that in some other Edition (if God so please) I may follow the forme that the Learned shall allowe of, and will sequester mine opinion: For it may be I should preferre those Reports which are lesse paineful, more compendious, and yet (perhaps) no lesse profitable. I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton saith3 is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Books of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne, And so I conclude with the Poet:

Shelley’s Case.

(1581) Trinity Term, 23 Elizabeth I In the Court of King’s Bench, before all the Justices of England. First Published in the Reports, volume 1, page 93b.*

Ed.: Edward Shelley and his wife Joan were tenants in special tail of a very long-term lease for years, which is to say that they held the right to the land under lease for life, although that right would go to their legal children living at their death and on to their children and so forth either until there Edition: current; Page: [7] was a failure of issue (which is to say that the current holder of the lease died and there were no children to take [in which case the lands reverted to Edward or his successors]), or until the lease ran out. Edward and Joan had two sons, Henry and Richard. Joan died. Henry married and had a daughter, Mary, and his wife had conceived a second child, who would be called Henry. Henry the father died before the Henry the younger was born and before his father Edward had died. Edward issued an indenture, or land transfer document, that would recover the old reversion of the fee tail, give the estate to himself for his life, then give it to some people out of the family for 24 years, and then give it to the heirs male of his body lawfully begotten (Edward’s legitimate sons or their legitimate sons and so on), with reversion in the event of a failure of issue to the heirs male of the body of John Shelley and of others. Edward died the morning before the procedure to recover the whole interest and enter the indenture was to be completed. Richard, the younger son of Edward, leased the land to a fellow named Wolfe. Henry the younger (the grandson of Edward and nephew of Richard) was born, and lawyers in his name threw Wolfe off the land. Besides the procedural difficulties of whether the action of recovery was good (it was) and whether Henry the younger had an interest (he did), the argument turned on whether Edward’s grant in tail was any good; if all of its clauses were in force, Richard could have made his lease. The court ruled that Edward’s grant was of an interest for life to Edward with a remainder to Edward’s heirs, which amounted to giving himself the whole of the estate, giving the fee tail to himself, thus extinguishing all of the later interests. Henry won.

Richard’s interests, in Wolfe, were represented by three serjeants; Henry’s interests were represented by Popham, who was then the Solicitor General, as well as Cowper and Coke. The case was heard by the entire bench, the judges of Chancery, the Queen’s Bench, the Common Pleas, and the Exchequor. There is considerable discussion of the nature of a grant, the construction of words of a grant, and the vesting of interests in litigants at law. This case has become famous as the origin of the rule now understood that a grant of a life estate to one person, coupled with the grant of a remainder in that person’s heirs, becomes a single estate in fee simple absolute. This rule, here advocated by Coke, was a deliberate attempt by the courts to limit feudal restraints on the transfer of land.

Edition: current; Page: [8]

Nicholas Wolfe brought an ejectione firmae1 of certain land in B. in the county of Sussex, against Henry Shelley, Esq. defendant, and declared on a lease by Richard Shelley, Esq. to which the defendant pleaded not guilty. And a special verdict was found to the effect following, viz. that Edward Shelley and Joan his wife were seised of the manor of Barhamwick, whereof the said land, wherein the said ejectment was supposed, was and is parcel, in special tail, that is to say, to them and to the heirs of their two bodies lawfully begotten, and shews how, the remainder to the said Edward and his heirs; and it was further found that the said Edward and Joan had issue Henry their eldest son, and the said Richard their younger son, and afterwards the said Joan died, and the said Henry having issue Mary yet living, died in the life of the said Edward, his wife then big with child of the said Henry the now defendant. And afterwards the said Edward Shelley by indenture bearing date the 25th of September, in the first and second year of the late King and Queen Philip and Mary, and first delivered the sixth day of October following, did covenant with Cowper and Martin to suffer a recovery of the said manor, amongst other things: and that the said recovery should be to the use of the said Edward Shelley for the term of his life, without impeachment of waste; and after his decease to the use of Mr. Caril and others for 24 years, and after the said 24 years ended, then to the use of the heirs male of the body of the said Edward Shelley lawfully begotten, and of the heirs male of the body of such heirs male lawfully begotten; and for default of such issue, to the use of the heirs male of the body of John Shelley of Michael Grove, &c. It was also found, that the said Edward Shelley, the 9th day of |Edition: Sheppard2003; Page: [94 a] October, being the first day of the term, between the hours of five and six in the morning died, and afterwards the recovery passed the same day with a voucher over, and immediately after judgment given, an habere facias seisinam2 was awarded, the wife of the said Henry Shelley being at that time great with child with the defendant. And afterwards, that is to say, the 19th day of October next following the recovery was executed; and afterwards the fourth day of December then next following, the wife of the said Henry was delivered of the said Henry now defendant. And it was likewise found that the said manor was in lease for years at the time of the said judgment and recovery, by force of a lease made long before Edition: current; Page: [9] the original writ purchased, upon which the said recovery was had: and that the said Richard Shelley, second son of the said Edward Shelley, and uncle to the said defendant, entered and made a lease to the said Nicholas Wolfe now plaintiff in the ejectione firmae; and that the said Henry Shelley the defendant entered upon the said Nicholas Wolfe and did eject him. And upon the whole matter aforesaid the Jurors pray the advice and judgment of the Court, if the entry of the said Henry the defendant was lawful or not; and if, by the judgment of the Court, the entry of the said Henry should be deemed unlawful, then the jury found that the defendant was guilty, and assessed damages: and if the entry of the defendant should be deemed by the Court to be lawful, then they found for the defendant that he was not guilty, &c.

This case was divided into four principal questions: whereof

1. The first was, if tenant in tail suffers a common recovery with a voucher over, and dies before execution, if execution may be sued against the issue in tail.

2. The second, if tenant in tail makes a lease for years, and afterwards suffers a common recovery, if the reversion be presently by judgment of law in the recoveror, before any execution sued.

3. The third, if tenant in tail having issue two sons, and the elder dies in the life-time of his father, his wife privement enseint3 with a son, and then tenant in tail suffers a common recovery to the use of himself for term of his life, and after his death to the use of A. and C. for 24 years, and after to the use of the heirs male of his body lawfully begotten, and of the heirs male of the body of such heirs male lawfully begotten, and presently after judgment an habere facias seisinam is awarded, and before the execution, that is to say, between five and six in the morning of the same day, in |Edition: Sheppard2003; Page: [94 b] which the recovery was suffered, tenant in tail dies, and after his death and before the birth of the son of the elder son, the recovery is executed, by force whereof Richard, the uncle, enters, and after the son of the elder son is born, if his entry upon the uncle be lawful or not.

4. The fourth and last point, if the uncle in this case may take as a purchaser, forasmuch as the elder son had a daughter which was heir general and right heir of Edward Shelley, at the time of the execution of the recovery. And this Edition: current; Page: [10] case was argued by Anderson the Queen’s Serjeant, and Gawdy and Fenner, Serjeants, for the plaintiff, and by Popham, Solicitor-General, Cowper, and Coke, for the defendant.

And as to the first point, the plaintiff’s counsel argued, that execution might be sued against the issue in tail; and their principal reason was, because the judgment given against the tenant in tail, and the judgment for the tenant in tail to have in value against the vouchee, bound the right of the estate-tail, and the issue in tail shall not avoid it by the Statute de Donis Conditionalibus, because the law adjudgeth that, in respect of the intended recompense, the issue in tail was not prejudiced: as if tenant in tail grant a rent for the release of one who hath a right to the land, it shall bind the issue in tail, because it is for the benefit of the issue, and so not restrained by the said act, as it is agreed in 44 Edw. 3. 21b. Octavian Lumbard’s Case. And if the recovery, upon which execution is had in the life of the tenant in tail, shall not be a bar to the issue, it would be mischievous and a great impeachment to common assurances of lands. And further, it was said, that the right of the estate-tail was bound by the judgment, and not by the execution; for if the right of the estatetail was not bound by the judgment, it could not be bound or barred by the execution had afterwards.

As to the second point, they conceived, that it was not any question, but that the recoverors had not the reversion presently by the judgment, notwithstanding the lands were in lease for years; for they said that the judgment was, that the demandant should recover seisin of the land which was but executory, and could not be executed until execution, entry, or claim. As if a common or reversion, or any other thing which lieth in grant be granted upon condition, if the condition be broken, the thing granted is not in the grantor before claim, for it was said, that when a man may enter, or claim, the law will not adjudge him in possession until entry or claim.

As to the third point, which was the great doubt of the case, they argued, that the said Richard, the uncle, was in by purchase, & ex consequenti4 the entry of the defendant upon him was not lawful; and this in effect was their principal reason:

|Edition: Sheppard2003; Page: [95 a] Argument. viz., that which originally vests in the heir, and was not in the ancestor, vests in the heir by purchase.

Edition: current; Page: [11]

But this use originally vests in Richard Shelley, and never was [vested] in Edward Shelley.

And therefore the use vests in Richard Shelley by purchase.

And they said, that it was manifest that the use never vested in Edward Shelley, for before the recovery executed no use could be raised, for the use ought to be raised out of the estate of the recoverors, but the recovery was not executed in the life of Edward Shelley, and therefore no use could rise during his life. And Serjeant Anderson said, it was impossible that Richard Shelley should be in by descent, because no right, title, action, use, or other thing touching the uses limited by the said indentures did descend to Richard, but only a thing intended to him, which intent in his life received no perfection; and therefore this case was not like any case where a right, title, action, use, or other thing descendeth from the ancestor to the heir, but is like the case in 5 Edw. 4. 6a. where the wife consents to a ravisher, having issue a daughter, the daughter enters by the statute of 6 Rich. 2. a son is afterwards born, he shall never divest it, for it vested in the daughter by purchase; so is the case agreed in 9 Hen. 7. 25a. If a lease be made to one for life, the remainder to the right heirs of J. S., if J. S. dies having a daughter, his wife with child with a son, the daughter claims it by purchase, and therefore the son born after shall never divest it; but they relied principally upon the case in 9 Hen. 7. 25a. that if a condition descends to the daughter, and she enters for the condition broken, the son born afterwards shall never enter upon her, and yet there she is in by descent, and the title of her entry, that is to say, the condition, she hath as heir: and yet because she was the first in whom it vested, the son born after shall not divest it, which is a stronger case than our case at the Bar.

And further it was said by the plaintiff’s counsel, that although the recovery had been executed in the life of Edward Shelley, yet ought the heir male to take by purchase; for they said, that the manner of the limitation of the uses is to be observed in this case, which is first to Edward Shelley for the term of his life, and after his death to the use of others for the term of 24 years, and after the 24 years ended, then to the use of the heirs male of the body of the said Edward Shelley, |Edition: Sheppard2003; Page: [95 b] lawfully begotten, and of the heirs male of the body of the said heirs male lawfully begotten; in which case they said, that if the heirs male of the body of Edward Shelley should be words of limitation, then the subsequent words, viz. and of the heirs male of the body of the said heirs male lawfully begotten, would be void: for words of limitation cannot be added Edition: current; Page: [12] and joined to words of limitation, but to words of purchase. And they said, that forasmuch as those words, heirs males of the body of Edward Shelley, might be words of purchase, that in this case the law will construe and take them as words of purchase, for otherwise the said subsequent words, “and of the heirs male of their bodies,” would be void. And such construction is always to be made of a deed that all the words (if possible) agreeable to reason and conformable to law, may take effect according to the intent of the parties without rejecting of any, or by any construction to make them void. And therefore Anderson put this case, if a man makes a feoffment in fee, to the use of himself for life, and after his decease to the use of his heirs, in this case the fee-simple executed; but in the same case, if the limitation be to the use of himself for life, and after his decease to the use of his heirs, and of their heirs female of their bodies, in this case these words “his heirs” are words of purchase, and not of limitation, for then the subsequent words “and of their heirs female of their bodies” would be void. So they concluded this point, first that no use could rise until execution sued, no execution was sued in the life of Edward Shelley, and then it first vested in Richard as a purchaser before the son of the elder son was born: and for the latter reason, admitting the recovery had been executed, notwithstanding the heirs male of the body of Edward Shelley should take by purchase, and so quacunque via data,5 they concluded, that the use first settled in Richard Shelley as a mere purchaser. And as to the latter point, which in effect (admitting, as hath been said, that the said words were words of purchase) was, that a lease for life is made to A. the remainder to the heirs male of the body of Edward Shelley, if in this case Richard may take this estate-tail by purchase as heir male, notwithstanding his elder brother had issue a daughter which is living, and who was his heir general; they said there was no difference as to that, where an estate-tail is limited by gift executed, and when by way of remainder, nor when the heir male of the body claims by descent, nor when by purchase, for if an estate had been made to Edward Shelley, and to the heirs male of his body, in that case |Edition: Sheppard2003; Page: [96 a] Richard Shelley without doubt should have had the land by descent, and that by a construction on the Statute de Donis conditionalibus to fulfil the mind and intent of the donor.

And so it is, if I give lands to a man, and to his heirs female, and the donee Edition: current; Page: [13] hath issue male and female, although the female be not heir general, yet she is heir special to claim per formam doni.6 And this was in effect the substance of the three arguments published and delivered at large on the plaintiff’s part before the Justices of the Queen’s Bench in Hilary and Easter terms, in the 23d year of the reign of Queen Elizabeth. And on the defendant’s part it was argued contrary. As to the first point it was argued, that execution could not be sued against the issue in tail; and therefore as it hath been agreed, that the judgment only against the tenant in tail did not bind, but the judgment to have in recompense, sequitur a concessis,7 that the issue in tail cannot be barred: and for proof that in this case the issue in tail could not have any recompense: first it was said, that if execution could not be sued against the issue in tail, then the issue in tail could not take any benefit of the recompense. For it is agreed in 17 Edw. 2. title Recovery in Value, Fitz. 33. 1 Edw. 3. fo. 12. that he who vouches shall never have execution against the vouchee before execution sued against himself; so that the judgment to recover over in value is not material (as the case is) unless execution may be sued against the issue, which cannot be in this case. For he who is in of an estate in possession, by title paramount a recovery, shall not be bound by the same recovery; but the issue in tail in our case is in of an estate in possession, which he had by title paramount the recovery, and therefore the issue in tail shall not be bound by the recovery. In proof of the first proposition, it hath been adjudged in 28 Hen. 8. reported by Serjeant Bendloes, which case began 26 Hen. 8. in the book at large, where the case was, that an executor having judgment to recover a debt due to the testator, and dying intestate before execution, and the Ordinary committing the administration of the first testator to one, that the administrator could not sue execution upon that recovery, because he deriveth his interest from, and represents the person of the testator, and so before the recovery. So it is, if there be two joint-tenants, and one makes a lease for years, rendering rent, the lessor dies, the other shall not have the rent; because he claims by the first feoffor, which is paramount the lease and the reservation. So if tenant for life makes a lease for years, reserving rent, and afterwards surrenders to him in the reversion, not being in by force of his ancient reversion, he cannot have the rent newly reserved. And in proof that the issue Edition: current; Page: [14] in tail was in by a title paramount |Edition: Sheppard2003; Page: [96 b] the recovery, he said, that the issue in tail shall avoid all charges, leases, and other incumbrances made by his ancestor, because he claims per formam doni. And if tenant in fee simple makes a lease for life, and suffers a recovery, he and his heirs are for ever concluded; but he said, if tenant in tail be of a reversion expectant on an estate for life, and he suffers a recovery, and hath judgment to recover over in value, yet his issue shall avoid the recovery, for he shall not be estopped, because he claims in per formam doni: but if execution had been sued in the life of tenant in tail, then forasmuch as the estate-tail doth not descend to the issue; and forasmuch as then he may sue execution over, it is good reason to bar the estate-tail; but if the issue in tail be in by lawful descent in possession of the estate-tail before the recovery [is] executed, then the law seems to be otherwise. Octavian Lumbard’s Case in 44 Edw. 3. which hath been cited on the other side, was not against this opinion, for there the issue in tail reaped the benefit of the release made to his ancestor; but in our case, the issue in tail being in of an estatetail paramount the recovery, cannot take benefit of the recompense over. And wherefore should not the issue in tail in this case, be at liberty to chuse whether he will take the estate-tail, or otherwise to admit execution to be sued against him, and to sue execution over in value, as well as in 14 Hen. 6. fol. 2. in the case of exchange, in which case although assets of greater value descend to him than the land in tail, yet he may chuse to have the one or the other at his election.

And if tenant in tail be disseised, and levies a fine to the disseisor without warranty and dies, if the issue in tail enters, and is seised by force of the tail before all the proclamations are made, although the proclamations be afterwards made, yet that does not bar the issue: So if tenant in tail levies a fine and disseises the conusee, and dies before all the proclamations are made, and after the proclamations in the time of the issue in tail pass, yet the issue is not bound thereby, by the statute of 32 Hen. 8. and yet the words of the Act are, that all fines after proclamations, &c. shall bar, &c. But it hath always been held, if the issue in tail be remitted and seised by force of the tail before the bar be complete, that is to say, before the proclamation be passed, the issue is not bound; so in this case before execution sued, the issue in tail is seised by force of the tail, and in per formam doni before the bar is complete, and therefore the execution cannot be sued against him, nor can any bar after the death of his father be made to the estate tail which is descended to him in possession. And it is agreed in 7 Edw. 3. 335. that if a disseisor at the Common Edition: current; Page: [15] Law before the Statute |Edition: Sheppard2003; Page: [97 a] of Non-claim, had levied a fine, or suffered judgment in a writ of right, until execution sued, they were not bars, for the year shall be accounted after the transmutation of the possession by execution of the fine or recovery; and so it is said in Stowel’s Case, Plow. Com. 357e.; and the books in 28 Ass. pl. 32. 7 Hen. 4. fol. 17. 17b. Plow. Com. 55b. 12 Edw. 4. fol. 20a. were cited, that execution upon a feigned recovery against the father, cannot be sued against the issue in tail.

To the second point they argued, that forasmuch as the land was in lease for years, that the recovery was executed by judgment of law presently after the judgment. And a difference was taken whenthe lands were in the possession of the tenant at the time of the judgment, and when the lands were in lease for years. And their reason of the difference was, because the recoverors in the one case may sue execution, and in the other case may not; and because the recoverors cannot sue execution, the law will therefore adjudge them in execution presently; the reason thereof is, that otherwise the lessee during the term might commit waste, and would be dispunishable by the recoveror, but if the recoverer may enter or sue execution, then he may prevent it. And therefore, if a fine sur cognizance de droit tantum8 be levied of land in possession, the cognizee hath nothing before entry, as it is agreed 48 Edw. 3. fol. 15b. 10 Hen. 6. fol. 16b. and Littl. in his Chapter of Attornment fol. 131b.: but if a fine sur cognizance de droit tantum be levied of a reversion upon an estate for life or years, or of a seignory, or any other thing which lieth in grant, there the reversion, or thing which lieth in grant, passeth presently. And it was said, that a common recovery is in nature of a common conveyance, and so it appears, that a reversion, or thing which lieth in grant, is more easily transferred from one person to another, than an estate of freehold in possession. A condition is executory as well as a judgment, but if the feoffor cannot enter, there the law will adjudge him in possession presently. And therefore it is holden in 20 Hen. 7. fol. 4b. 20 Edw. 4. fol. 19a. & 22 Edw. 4. that if the condition be collateral, and the feoffee makes a lease back again for years to the feoffor, and then the condition is broken, the law shall adjudge the feoffor in of a present fee-simple, because he cannot enter; and yet in that case he Edition: current; Page: [16] may say, that forasmuch as he cannot enter, therefore he ought to make claim; yet the law in that case requires no claim to be made; but, in the case before, it is otherwise, where no lease for years had been made back again, and the reason may be for the mischief before-mentioned.

The case of Littleton fol. 84. was likewise cited, where Littletonis of opinion, that in the case of a condition, the fee-simple shall be revested again in the lessor, because he cannot enter, and the Law will |Edition: Sheppard2003; Page: [97 b] adjudge him in possession without entry or claim. It was likewise said, that those things which lie in grant, as in the case before remembered of the fine, they pass to the conusee immediately, by the fine levied: so in the case of a common recovery (which is now become a common assurance and conveyance) such things, which lie in grant, are in the recoveror by the judgment. And therefore, there are some opinions in the Books in 22 Ass. pl. 84. 45 Edw. 3. fol. 26b. & 30 Edw. 3. fol. 33. that if a man hath judgment to recover a rent, or common, or any thing which lieth in grant, there the thing so recovered is in the recoveror by the judgment, for the Books say, that the demandant is in seisin immediately by the judgment. And they cited the case in 27 Hen. 8. fol. 7a. which is direct in the point, that the recovery is executed immediately by the judgment; the land being in lease for years. So they said, first, that execution could not be sued against issue in tail: secondly, if it was necessary that execution should be had in the life of Edward Shelley, that it was executed by the judgment of the law: And if the judgment was executed by operation of the law, then the estate-tail to his heirs male of his body was in Edward Shelley, and consequently the entry of the defendant was lawful without question.

But for the argument of the third point, [which was the great doubt in the case,]9 admitting the Law in both the said points to be against the defendant, that is to say, that execution might be sued against the issue in tail; and that the recovery was not executed in the life of Edward Shelley, but after his death, and before the defendant was born: yet the defendant’s counsel argued that the defendant’s entry was lawful. The first reason in effect was as followeth: When the Law prescribes a means to perfect or settle any right or estate, if by the act of God, this means in some circumstances (as in our case in time) becomes impossible, yet no party who was to have received benefit, if the means had been, with all circumstances, executed, shall receive any prejudice Edition: current; Page: [17] for not executing it in such circumstance which became impossible by the act of God, if every thing be performed without laches that the parties might perform; for it would be unreasonable that those things which are inevitable by the act of God, which no industry can avoid, nor policy prevent, should be construed to the prejudice of any person in whom there was no laches. And therefore the prescript Rule of Law is, that although a man shall not be tenant by the curtesy without actual seisin; yet of a rent, or of an advowson, if the wife dies before the rent-day, or before the avoidance, he shall be tenant by the curtesy, as it is agreed in 7 Edw. 3. |Edition: Sheppard2003; Page: [98 a] 66a, 66b. & 3 Hen. 7. 5b. for by the act of God it is become impossible for him to have actual possession. Also, if lessee for the term of another man’s life, be disseised of certain lands, and the disseisor takes the profits of them, now if the disseisee will recover the mean profits, the means which the Law prescribes for the same is, That the tenant for the other man’s life shall re-enter, and then he shall recover all the mean profits in an action of trespass; but if the means become impossible by the act of God, by the death of the cestuy que vie,10 so that he cannot re-enter, then he shall have an action of trespass without any re-entry, because the means is become impossible by the act of God, viz. the re-entry, as it is held in 38 Hen. 6. fol. 28e. Also, if a lessee covenants to leave a wood in as good plight as the wood was at the time of the lease, and afterwards the trees are blown down by tempest, he is discharged of his covenant, quia impotent’ excusat legem,11 as it is held in 40 Edw. 3. 6a. So if the father be enfeoffed with warranty to him and to his heirs, and afterwards the father enfeoff his son and heir apparent with warranty, and afterwards dies; now in regard the act of God hath destroyed the warranty between the father and the son, the son shall vouch as heir, although he is in by purchase, because the act of God hath determined the warranty between the father and the son, as it is adjudged in 43 Edw. 3. 23b. & 30 Edw. 3. 22. So in this case, when Edward Shelley died the morning of the same day that judgment was given, immediately upon the judgment, the recoverors sued forth an habere fac’ seisinam, so that no laches was in any party, but it became impossible by the act of God, that execution could be had in the life of Edward Shelley; and therefore execution being had after his decease, shall not prejudice the son born after, who at that time was Edition: current; Page: [18]in utero matris.12 The second reason was, because the use vested in Richard Shelley although not directly by descent as to have his age, or to toll an entry, &c. yet in the nature and degree of a descent by reason of the original act begun in the life of the ancestor; and their reason, in substance, was to this purpose. Where the heir takes any thing which might have vested in the ancestor, the heir should be in by descent; [then, although it first vested in the heir and never in the ancestor, yet the heir shall take it in the nature and course of a descent;]13 but in the case here the use might have vested in Edward Shelley, and if it had vested in Edward, then Richard Shelley would have taken it by descent, and therefore Richard, in this case ought to take this use in the nature and course of a descent. And therefore if a fine had been levied sur cognisance de droit tantum to Edward Shelley in fee, and after, and before execution, Edward had died, and Richard had entered before Henry was born; now although Richard be the first who entereth, yet forasmuch as this fine was levied to his ancestor and his |Edition: Sheppard2003; Page: [98 b] heirs, so that he claimeth by words of limitation; and forasmuch as the first and original act was done in the life of the father, and because it might have vested in the ancestor, and if it had vested in the ancestor, it had descended, for this cause Richard had taken it in course and degree of a descent, and the entry of the defendant had been lawful upon him. And yet, in that case, Richard should not have been in directly by descent, either to be in ward, or to have had his age, or to have tolled the entry of one who had right; but otherwise it is when the remainder is limited to the right heirs of J. S., &c. for there it beginneth in the son by name of purchase, and never could have vested in the brother, as the Book in 9 Hen. 7. 24. cited by the other side is agreed. So in the case of ravishment, 5 Edw. 4. fol. 6. which was cited on the other side; for in these cases, and all the others which have been put by the other side, the estate vested originally by purchase, and no beginning was in the life of the ancestor, which could ever have vested in the ancestor. And 16 Edw. 3 tit. Age Br. 51. if Richard Shelley had a seignory by descent, and afterwards the tenancy had escheated, and after the son is born, in that case the son shall enter upon him; for although the tenancy first vested in him, and never was in the father, yet because the original cause, viz. the seignory, was in the father, therefore the son shall enter upon the uncle. And Edition: current; Page: [19]Chapman’s Case in Mr. Plowden’s new reports, fol. 284. was cited, for there it appears, that a covenant was made with Chapman, that he would make a lease for years to Chapman, &c. and before the lease was made Chapman died, and then the lease was made to his executors, so that the term did first commence in the executors; yet forasmuch as the covenant made to the testator was the cause of the making of the estate to the executors, for that reason the term was assets in the executor’s hands, as well as if it had been made to the testator himself. So in our case, although the land first vested in Richard, yet it vested by reason of the recovery had against Edward Shelley, and the indenture made by him, and therefore Richard shall be in course of descent as well as the executors in the course of executors.

Further, admitting that Edward Shelley had exchanged certain land with another, and the other had entered into the land of Edward Shelley, but Edward Shelley had died before the entry, the Law is clear that the heir of Edward Shelley may enter into the land taken in exchange if he will, and so Perkins clearly takes it, fol. 57a.; then admitting that Richard Shelley had entered into the land taken in exchange, now he is the first in whom the land vests, but because it might have vested in Edward Shelley, and because he came to it by words of limitation, the son of the elder son born afterwards shall enter upon him: and yet |Edition: Sheppard2003; Page: [99 a] no right, title, use, nor action descends in this case; for at his election the exchange might have been avoided. And so it is, if a man seised of the manor of S. covenants with another, that when J. S. shall enfeoff him of the manor of D., then he will stand seised of the manor of S. to the use of the covenantee and his heirs; the covenantee dies his heir within age, J. S. enfeoffeth the covenantor; in this case it was holden in Wood’s Case, 3 Eliz. in the Court of Wards, that the heir shall be adjudged in, in course and nature of a descent; and yet it was neither a right, title, use, nor action that descended, but only a possibility of a use, which could neither be released nor discharged; yet it might, if the condition had been performed, have vested in the ancestor, and then the heir had claimed it by descent. And therefore in that case the heir was not in by purchase, but in by course of descent. And admitting that in all the cases which have been put, as in the case of ravishment, and in the case of the remainder, &c. he who might first enter dies before entry, and the younger son enters, and afterwards the son of the elder son is born, now it is clear, that the son of the elder son shall divest the land from the uncle, for it might have vested in the ancestor; and so to the case which hath been urged by the plaintiff’s counsel in 9 Hen. 7. 25. of the condition: Edition: current; Page: [20] the solicitor and Coke said, that it might be allowed for law, if the true sense thereof be apprehended. And therefore if the condition be, that the feoffor or his heirs pay the sum of 201. or do any act before a day certain, that they shall re-enter, in that case if the father dies before the day of payment, and the daughter to save the inheritance pays the money, or satisfies the condition; in these cases peradventure the son shall not divest it, for if the daughter had not performed the condition, the land had been utterly lost. And therefore, in that case, a good argument may be made, that the daughter may detain the land, for qui sentit onus, sentire debet & commodum.14 But if the condition was to be performed on the part of the feoffee, or broken in the life of the feoffor, then they said the law was clearly otherwise, for the heir entering for such condition broken shall be in ward, and have his age, and no such special reason as in the case next before.

It was also asked, out of what fountain this use should arise, and who was the mother that conceived this use? and the indenture answers, the recovery. For the indentures say, that the recovery shall be to the uses, &c. Then it was said, if the recovery be the mother which conceived this use, and the fountain out of which the use rose; forasmuch as this recovery was had in the life of Edward Shelley, although the use slept, and was as embrio in utero matris15 until execution sued: yet the execution |Edition: Sheppard2003; Page: [99 b] being once had, the execution shall respect the recovery and raise the use, which slept before, which use being once awaked, or raised, takes its life and essence from the recovery which was had in the life of Edward Shelley. And thereupon some of the defendant’s counsel argued in this manner, The execution of every thing which is executory always respects the original act or cause executory, and when the execution is done, it hath relation to the thing executory, and all makes but one act or record, although it be performed at several times: And therefore if A. by deed indented, covenants with B., that B. shall recover against him the manor of D. within a year next following; and that the recovery and execution thereupon to be had within the said year, shall be had to the recoveror in tail, &c. and after the recovery is had within the year, and the execution is sued after the year, in this case it is clear, that although the covenant is not pursued in time according to the precise form of it, yet the use shall be guided by the said Edition: current; Page: [21] indentures: So in the same case, if the same recovery betwixt the same parties of the same land was suffered after the year, yet if no other intervenient agreement were between the parties, the recovery shall be intended to be to the uses of the indentures. For variance in time in such case shall not subvert the original agreement and contract of the parties. And it is held in 6 Edw. 3. 44b. that if the presentment to a church by an usurper be in time of war and the institution and induction, which are but as executions of the presentment be in time of peace, yet it shall be avoided, for the Law regards the original act & causa & origo est materia negotii.16 If a man who is non compos mentis,17 gives himself a mortal wound, and before he dies hebecomes of sanamemoria,18 and afterwards dies of the same wound; in this case, although he dies of sana memoria by reason of his own proper wound, yet because the original cause of his death, viz. the wound was when he was non compos mentis, he shall not be felo de se,19 because the death, &c. hath relation to the original act which was the stroke or wound; which see 22 Edw. 3. titula Corone 244. And so it is 33 Ass. 7. Corone 210. if a servant hath an intent to kill his master, and before execution of his intent goes out of service, and being out of service, executes his purpose, and kills him who was his master; this is petit-treason, for the execution doth respect the original cause, which was the malice conceived when he was servant; and yet if the law should adjudge and make construction according to the several times, then it would be plain, it would be no petit-treason. So in our case, the execution of the use relates to the indentures and recovery.

|Edition: Sheppard2003; Page: [100 a] It was also asked, when after that the execution was had, so that now the use, which before slept, is raised, what thing is it that governs and directs this use? And it is to be answered, the indentures. And what is their direction? That the said Edward Shelley shall have it, and after his death the heirs male of his body, so that the indentures direct the use to the heirs male of his body by way of limitation of estate, and not by way of purchase. And from thence this reason was collected; The indentures direct and govern the manner and quality of the use, but the indentures direct that the heirs male of the body Edition: current; Page: [22] of Edward Shelley shall take it by limitation of estate, and not by name of purchase; and therefore Richard ought to have it as heir by limitation of estate, and not by name of purchase; for when the execution was had, the indentures immediately guided the use to Richard, because he was at that time heir male of the body of Edward Shelley, which Richard is not heir after the birth of the son of the elder son. Further it was said, admitting all the matter before would not serve for the defendant (which the defendant’s counselheldstrongly it would) yet it is to be considered, in this case, that the estate vests in Richard by way of limitation of use and not by any conveyance by the Common Law in possession: and therefore admit our case had been before the making of the stat. of 27 Hen. 8., and that the recoverors had sued execution after the death of Edward, and before the son of the elder son was born, and then the son of the elder son had been born. In that case it was asked, which of them should have the subpoena? And the defendant’s counsel conceived that the son of the elder son, although the use did first attach in the uncle, should have the subpoena. For if the intent of Edward Shelley may appear to the Court, that the son of the elder son should have this use, then that is the rule by which the use is to be guided and directed. For at the Common Law the intent of the parties was the direction of the uses, for they were only determinable, and to be adjudged by the Chancellor who is Judge of Equity, and that in Chancery, which is a Court of Conscience: and as Bracton saith, fol. 18. Nihil tam conveniens est naturali aequitati quam voluntatem domini volentis rem suam in alium transferre ratam haberi.20 And therefore in proof, that uses are directed by the intent and meaning of the parties, divers cases were cited, 31 Hen. 6. titulo Subpoena Fitzherbert 23. Statham Conscience 1. A man being cestuy que use, and having an only daughter, declared his intent and meaning to the feoffees, that after his decease his daughter should have his land. And therefore a question |Edition: Sheppard2003; Page: [100 b] arose in Chancery, whether he might revoke this limitation of the use made to his daughter; and in arguing this case, Fortescue held, That if cestuy que use hath issue a daughter, and being sick, declares his intent to his feoffee, that his daughter shall have his land after his decease; and after he recovers his health, and hath issue a son, now he said it is good conscience that the son should have the subpoena, for he is his heir. Note the reason of Edition: current; Page: [23] Fortescue, because he is his heir. And there Fortescue said, that Conscientia dicitur a con & scio, quasi simul scire cum Deo,21 that is to say, the will of God as near as reason wills. We find likewise in divers other cases in our books, that the intent of the parties is the direction of uses, by a considerable and favourable construction. And therefore it is held in 7 Hen. 6. fol. 4b. if a man be seised of land on the part of his mother, and makes a feoffment in fee, reserving rent to him and his heirs, in that case, by the rule of Common Law, as Littleton says, the rent shall go to the heir on the part of the father; but if a man be seised of lands on the part of the mother, and makes a feoffment in fee to the use of him and his heirs, the book is directly agreed in 5 Edw. 4. fol. 7b. that this use shall not go to the heir at the Common Law, but forasmuch as the land and living move from the part of the mother, therefore in equity, the use which is nothing but a trust and confidence, should go also to the heirs on the part of the mother. Littleton likewise says, that a man shall not have a fee-simple by a feoffment or grant without these words “his heirs.” And yet the Law is plain, that if a man had before the statute of 27 Hen. 8. bargained and sold his land for money without these words, “his heirs,” the bargainee hath a fee-simple. And the reason is, because by the Common Law nothing passeth from the bargainor, but a use, which is guided by the intent of the parties, which was to convey the land wholly to the bargainee; and forasmuch as the law intends that the bargainee paid the very value of the land, therefore in equity, and according to the meaning of the parties, the bargainee had the fee-simple without these words “his heirs,” as it is held in 27 Hen. 8. fol. 5. 4 Edw. 6. Br. Estates 78. 6 Edw. 6. and in the time of Hen. 8. Br. Conscience 25. So in our case, although the use first vested in the uncle, admitting the case to be before the stat. of 27 Hen. 8. yet seeing that the intent of Edward Shelley, was to advance the son of his elder son, and because in equity the general heir is to be favoured, therefore the son after born shall have the subpoena.

Moreover the rule in Law is, that if an estate be limited to two, the one capable, and the other not capable, he who is capable shall take the whole, as the cases are agreed in 17 Edw. 3. fol. 29. and 18 Edw. 3. 59. If a man gives land to one & primogenito filio,22 if he hath no son |Edition: Sheppard2003; Page: [101 a] the father takes the whole: Edition: current; Page: [24] And so it is 1 lib. Ass. 11. & tempore,23 Edw. 1. Taile 24. if a man gives lands to a man, and to such a woman as shall be his wife, the man takes the whole; but if a man makes a feoffment in fee, to the use of himself and his wife that shall be, and afterwards he marries, his wife shall take jointly with him, as it was held in The Lord Pawlet’s Case, 17 Eliz. Dyer 340., notwithstanding the whole vested at first in the husband. Also, the rule of Law is, that a remainder cannot stand without a particular estate, and yet the Book is agreed in 37 Hen. 6. fol. 36a. that if a man makes a feoffment in fee to the use of one for life, and after to the use of another in fee, although the particular tenant refuses, yet the remainder is good. And so it is said in the Book in the case of a devise. As if a man devises lands for life, the remainder in fee, and the tenant for life refuses, yet the remainder is good: And so note, that the limitation in uses and estates given by devises resemble one another. So the Judges there took the construction of devises, and of estates conveyed in use to be all one, viz. according to the meaning of the parties: And admitting in the case here, the land had been of the custom of gavelkind,24 and upon that it had been asked, if Edward Shelley had had sundry other sons, should the elder son only have had the whole use? surely he only should not have it, but all equally, and yet if he had taken it by purchase, then the elder son only ought to have it. Now the intent of Edward Shelley, is to be proved by divers circumstances apparent in the record; first, if Edward Shelley had intended to have given it to the uncle, he never would have given it him by so general a name as “heir male,” for if the recovery had been executed in the life of Edward Shelley as was fully intended, then it had been in manner agreed, that Richard Shelley could not have had the land, for the “heirs male” are words of limitation; or if the son of the elder son had been born in the life of Edward Shelley, which was impossible for Edward Shelley to have known the contrary, for the defendant was born within one month after his death, then out of all question the uncle could never have had it; and therefore except you will ground uponabsurdities, the one, that Edward Shelley knew that he should die before the recovery executed; the other, that he should die, before the birth of the son of his elder son, which none could know but God; it must be granted, that the intent of Edition: current; Page: [25] Edward Shelley was to advance his elder son, and by no means to disinherit him. Also, at the time of his death Richard Shelley was eighteen years old: And therefore, if he intended to advance Richard, he would not have given his lands to his trusty friends Mr. Carill and others for twenty-four years; but without doubt he intended that the son of his eldest son should have it; and the same moved him to devise such a term which might be ended when the defendant should be of fit age |Edition: Sheppard2003; Page: [101 b] to receive and govern his living. The reason why the said Edward Shelley suffered the said recovery was, (as it seems) because Mary, daughter of his elder son named in the special verdict, would have inherited; and if the wife of his elder son had been delivered of a daughter, then had the land gone out of his name, and therefore for the continuance of the land in his name and family, he suffered the said recovery; and therefore it being by way of limitation of use, the son of the elder son ought to have it, and especially inasmuch as no rule in Law in our case is impugned, but it stands well, as hath been proved before, with the rule of the Common Law. And one of the defendant’s counsel said, that at the Common Law, a use being but a trust and confidence, and, as is said in 14 Hen. 8., resting only in privity betwixt those who had notice thereof; and forasmuch as the consciences of the feoffees and others who were trusted became too large, and would not perform the confidence reposed in them, but made feoffments upon divers considerations to strangers not having notice of the uses, and by divers other fraudulent devices, did deceive and defraud those to whose uses they were seised: therefore first was the stat. of 1 Rich. 3. made, by which authority was given to the cestuy que use to enter and make a feoffment; But after that statute the feoffees oftentimes did prevent the feoffment of cestuy que use by subtle and cunning practices, yet defrauding the cestuy que use, and not discharging the trust reposed in them; and therefore to take away all the power and means of deceiving by the feoffees, the stat. of 27 Hen. 8. was made. And therefore it is holden for the better opinion at this day, that for the raising of future uses after the stat. the regress of the feoffees is not requisite, and that they have not power to bar these future uses, for the statute hath transferred all the estate out of them. But he said, in our case, if the suing of the execution after the death of Edward Shelley, and before the birth of the son of the elder son, should make the uncle have the land, then it would rest in the disposition and pleasure of the recoverors, whom they would make to inherit; for then it would follow, that if they enter and execute the recovery before the birth of the son of the elder son, then the uncle should have it, and if they would Edition: current; Page: [26] not enter until after the birth of the son of the elder son, then without all question the son of the elder son should have the land: so that by this construction, the matter would lie in the breast of the recoverers who were but instruments, and not persons in any manner trusted to settle the inheritance in whom they pleased, which was never any part of the meaning of Edward Shelley, and which is very absurd in reason. And it would be mischievous that the inheritance of any man should be at the appointment and discretion of two strangers, who were named only as instruments, and never in any manner trusted; and it would be a |Edition: Sheppard2003; Page: [102 a] greater mischief than any was at the Common Law. Also, as this case is, if the sheriff had executed the recovery upon the day on which the writ of execution was sued forth, then it had been evident that the son of the elder son should have had the land, for then had execution in judgment of law been in the life of Edward Shelley. But by the construction which hath been made, it would likewise be in the power of the sheriff to settle the inheritance in whom he pleased, for if he had executed the recovery the same day, as might have been done, or after the birth of the son of the elder son, then the son of the elder son should have had the land; but uno absurdo dato infinita sequuntur.25 And therefore for the avoidance of these mischiefs and absurdities, the law will adjudge Richard in the land in course and nature of a descent, and then all the mischiefs and absurdities are avoided, and no ground or rule in the law is thwarted.

And note, the stat. of 27 Hen. 8. is, that cestuy que use shall have the possession to all intents, constructions, and purposes in law, and of and in such like estates as they had or ought to have in the use; and that he shall have the possession after such quality, manner, form and condition, as they had before had, or have had the use, trust, or confidence; so if the uncle before the statute had had the use, trust or confidence in nature and course of a descent, yet the son of the elder son shall divest the use, and have the subpoena: and because the statute executes the possession after such quality, manner, form, and condition, as the use, trust, or confidence was in them; for these causes the possession executed by the statute ought to be subject to the entry of the son of the elder son. And therefore, if cestuy que use had issue a daughter, and died before the stat. of 27 Hen. 8. his wife being great with child with a son, and before the birth of the son, the statute had been made, so that the possession Edition: current; Page: [27] had first vested by force of the statute in the daughter, yet the son born after might enter upon her; for the daughter had the possession in the same quality and condition as she had the use, but she had the use by descent, and subject to be divested by the birth of the son, and therefore he ought to have the possession by the statute in the same quality and degree, and that is in the nature and course of descent: But in the case of descent, the son after-born shall enter upon the daughter, and therefore the son in this case shall enter upon the daughter; and the like construction upon the like case hath been made before this time, therefore Justice Mountagu in Wimbishe’s Case, and Plowden in Plowden’s Comm. fol. 56b. held that if a woman hath a jointure made her by her husband in tail, and hath issue a daughter, being great with child with a son, and before the birth of the son she discontinues with warranty; now the stat. of 11 Hen. 7. saith, that such person to whom the title after the death of such wife |Edition: Sheppard2003; Page: [102 b] doth appertain shall enter into the lands, and shall possess and enjoy the same according to their title to the same, as if no such discontinuance had been made; and therefore he held clearly, that although the daughter after such discontinuance first entereth, yet the son born after shall enter upon her by reason of the words of the stat. of 11 Hen. 7. for the words are, that she ought to enjoy the same according to her title; but her title is in tail, and therefore after the birth of the son, he being next heir in tail, the title of the tail shall be devolved from her to the son.

So in our case the stat. of 27 Hen. 8. saith, that cestuy que use shall have the possession in the same quality, manner, form, and condition as he had the use. And therefore if a use were limited before the statute to John S. and Jane at Gappe, and to their heirs, and afterwards they intermarry, and after the statute is made, by which the possession is executed to them and their heirs during the coverture; yet they shall not have a divided estate, but the like moieties as they had in the use. So if cestuy que use be of certain lands held by priority and of other land by posteriority, and after the statute is made, by which execution is made of the possession of both at the same time, yet he shall have the possession of both in the same quality as he had the use, and all that by the express words of the statute. And it is to be noted, that the stat. of 27 Hen. 8. doth not speak only of uses, but also of trusts and confidence, so that although no use rose in the time of the life of Edward Shelley, yet there was a trust and confidence expressed in his life. And therefore when the use is once raised, it ought to be vested according to the trust and confidence which Edward Shelley intended and declared by the indentures.

Edition: current; Page: [28]

Lastly, the defendant’s counsel argued, That the uncle could not have the land as a purchaser, admitting the remainder had been limited to the right heirs male of the body of Edward Shelley, in as much as the eldest son of Edward Shelley had issue Mary his daughter, who is yet alive, as appears by the Record, and who is heir to Edward Shelley. It hath been said, that although Mary at the time of the death of Edward Shelley, was heir general, yet the said Richard was at that time heir male of the body of Edward Shelley. And therefore he might as special heir male of the body of Edward Shelley take the remainder, although Mary is heir general; and therefore it hath been said that if lands had been given to Edward Shelley, and to the heirs male of his body lawfully begotten, that in that case, after his death, Richard Shelley as heir male per formam doni shall inherit, although the daughter of the elder son was general heir to Edward Shelley. To that they answered, and took a difference when the heir male of the body claims by descent, and when he claims by purchase; for in descents the law is as hath been alleged, but it is otherwise in cases of purchase. This |Edition: Sheppard2003; Page: [103 a] difference was proved by the case in 37 Hen. 8. Br. Done 42. If a man makes a gift in tail of lands in gavelkind to a man and his heirs male of his body lawfully begotten, and hath issue four sons, in this case all the sons shall inherit: But if a lease for life be made of lands in gavelkind, the remainder to the right heirs of J. S. and J. S. dies, having issue four sons, in this case the eldest son only shall have the remainder, for there can be but one right heir in the case of purchase.

And so is Ellerker’s opinion expresly in 9 Hen. 6. fol. 24a. If a man makes a lease for life, the remainder to the right heirs female of the body of J. S. and J. S. hath issue a son and a daughter, and dieth, in this case the daughter shall not take the remainder, for she is not heir female to take by purchase. And yet it is plain, that if a gift in tail had been made to J. S. himself, and to the heirs female of his body, and J. S. dieth, having issue a son and daughter, the daughter should have had the land by descent. Also in 37 Hen. 8. Br. Done 61. it appears, that the Lord Hussey made a feoffment in fee to the use of Anne his wife for life, and after to the use of the heirs of his body, and after the Lord Hussey was attainted of treason, and although Brook hath not expressed the judgment, yet it was said, it was adjudged, that the right heirs of his body could not as purchaser take the remainder, because he was not heir of his body to take it by purchase, by reason of the attainder of his father. And yet before the stat. of 26 Hen. 8. if tenant in tail had committed high treason the land had descended. And in Brooke’s Reports aforesaid it appears, Edition: current; Page: [29] that Hare, the Master of the Rolls, took the difference between a gift in possession to a man and to his heirs female of his body, and a lease for his life, the remainder to the right heirs female of his body; for in case of a remainder (as he said) she ought to be heir indeed, or else she can never claim it by purchase. So it appears by these authorities, that in case of purchase the heir male of the body ought to be heir indeed. And forasmuch as in our case, the uncle was not heir male for a man cannot have two heirs to claim by purchase, therefore as purchaser the uncle cannot claim it. But it hath been said, that the Statute de Donis Conditionalibus aids and helps the heir male of the body to take, for that the will of the donor appears, that the heir male of his body should have the land; and the statute saith, quod voluntas donatoris secundum formam in charta doni sui manifeste expressa, de caetero observetur.26 In answer of which, one of the defendant’s counsel declared |Edition: Sheppard2003; Page: [103 b] the reason of the other cases and authorities which had been cited, and of the difference which was taken before; and therefore he said that the Statute de Donis Conditionalibus did not help this case. Mr. Littleton in his chapter of Estate-tail saith, that every gift in tail within the Statute de Donis Conditionalibus, before themaking of that statute, was a fee-simple at the Common Law; and therefore he put the case before the Statute de Donis Conditionalibus, and examined if the same had been a fee-simple conditional before the said statute, for otherwise it cannot be an estate in fee-tail by the statute. For he said that the Statute de Donis Conditionalibus was a nurse, and no mother of estates of inheritances tail, and that it preserved the estates of inheritances in fee-tail, but did not beget or procreate any estates tail, which were not fee-simple conditional before. And therefore he took the law to be clear, that if a man gives land to a man & semini suo,27 or to a man & liberis suis de corpore,28 or prolibus suis,29 or exitibus suis,30 or pueris suis de corpore,31 in these cases the donee hath no estate in fee-tail, but only an estate for term of life; for if such gifts had been made before the statute, they had been no fee-simples conditional; and therefore Edition: current; Page: [30] by Mr. Littleton’s rule, no estate-tail by the Statute de Donis Conditionalibus. For the statute creates no new inheritances, which were no inheritances at the Common Law, but only nurses and preserves those which were estates of inheritance at the Common Law. And therefore the law was taken in the Case of Martin Hastings of Norfolk, for the manor of Elsinge, and where an estate was made to one of his ancestors, and to the issue male of his body, that in that case he had but an estate for life. And so it was held by Sir Roger Manwood, then one of the Justices of the Common Pleas, clearly in argument of Clatch’s Case, anno 16 Eliz. and therefore he examined the case here before the said statute; and he took it without question, that if a lease had been made for life, the remainder to the heirs male of the body of J. S. that in that case, if J. S. had issue two sons, and the eldest son having issue a daughter died in the life of J. S. and then J. S. had died; that in that case the younger son of J. S. after his death cannot take this fee-simple conditional by the Common Law, for he was not heir male of the body to take this fee-simple by purchase; for first he ought to be heir, and secondly he ought to be heir male. And in that case if J. S. had been attainted of treason or felony, the heir male of his body could never have taken the remainder, for he was not heir, which might be the reason of The Lord Hussey’s Case before cited. And it is holden in 12 Edw. 3. |Edition: Sheppard2003; Page: [104 a] titulo Variance 77. that where a man makes a gift to the husband and wife, and to the heirs of the body of the husband, and if the husband and wife die without issue of their two bodies, that then it shall remain over; in that case although the will of the donor appears, that the wife shall be also donee in special tail, yet forasmuch as by the order of the Common Law she could not have an estate of fee-simple conditional, for that cause she could not have an estate-tail by the statute. But in the said case where lands are given to a man and the heirs female of his body; here is an estate of inheritance vested in the donee, which estate of in heritance the Statute de Donis Conditionalibus directs to the heir female by descent, although there be an issue male.

And as to what hath been objected, that forasmuch as the limitation was to the heirs male of the body of Edward Shelley, and of the heirs male of the body of the heirs male lawfully begotten, that the heirs male of the body of Edward Shelley should be purchasers, for otherwise the subsequent words would be void: The defendant’s counsel answered, that it is a Rule in Law, when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately Edition: current; Page: [31] to his heirs in fee or in tail; that always in such cases, “the heirs” are words of limitation of the estate, and not words of purchase. And that appears in 40 Edw. 3. fol. 9a, 9b. in The Provost of Beverley’s Case, in 38 Edw. 3. fol. 31d. 24 Edw. 3. 36b. 27 Edw. 3. fol. 87a. and in divers other books. So inasmuch as in this case Edward Shelley took an estate of freehold, and after an estate is limited to his heirs male of his body, the heirs male of his body must of necessity take by descent, and cannot be purchasers; otherwise is it where an estate for years is limited to the ancestor, the remainder to another for life, the remainder to the right heirs of the lessee for years; there his heirs are purchasers. Or if the remainder be limited to the heir in the singular number upon a lease for life, there the heir takes an estate for term of life by purchase. And if it should be admitted, that in regard of the said subsequent words, the right heirs male should have by purchase to them and the heirs male of their bodies, then a violence would be offered as well to the words as to the meaning of the party, for if the heir male of the body of Edward Shelley should take as purchaser, then all the other issue male of the body of Edward Shelley would be excluded to take any thing by the limitation; and it would be against the express |Edition: Sheppard2003; Page: [104 b] limitation of the party. For the limitation is to the use of the heirs male of the body of Edward Shelley, and of the heirs male of their bodies begotten, and for default of such issue, to divers other persons in remainder; so if Richard Shelley being the heir male of the body of Edward Shelley at the time of his death should take by purchase, then the heirs male of the body of Richard Shelley only would be inheritable, and no other of the sons of Edward Shelley, nor their heirs male, and consequently, if Richard Shelley should die without issue male, the land would remain over to strangers, and all the other sons of Edward Shelley which he then had and might afterwards have, and their issues, would be utterly disinherited; because the words were in the plural number, “heirs male of the body of Edward Shelley,” the former construction will be against the very letter of the indentures, for by that means the plural number will be reduced to the singular number, that is to say, to one heir male of the body of Edward Shelley only: and forasmuch as the first words, viz. (“heirs male of the body of Edward Shelley” include the subsequent words, viz. “the heirs male of their bodies”) for every heir male begotten of the body of the heir male of Edward Shelley is, in construction of law, an heir male of the body of Edward Shelley himself; for this reason the subsequent words are words declaratory, and do not restrain the former words. As in the case of Littleton, if a man makes a feoffment in Edition: current; Page: [32] fee, ita quod32 the feoffee shall do such an act, in that case Littleton said it is commonly used in such cases to have also these words, “and if the act be not done, it shall be lawful for the feoffor to re-enter,” which he said was more than was necessary, for the first words are sufficient in law, and include them, yet he said they were well put in, to declare and express the law to lay-people.

And lastly in this case, if Richard Shelley should not be in course and nature of a descent, then he could not take at all; for when an estate is made to a man, and after in the same deed, (to limit the quality of the estate) a further limitation is made to his heirs, or to the heirs of his body; in all these cases his heirs, or the heirs of his body, shall never take as purchasers, but in this case these words, “heirs male of the body of Edward Shelley,” were words of limitation; and therefore the heir male of the body cannot take as a purchaser. And in proof of the first proposition, it was said, that this is the reason of the book in 40 Ass. pl. 19. and of Mr. Littleton’s Case, fol. 128. that if a man grants a reversion, or a seignory, by deed to J. S. and his heirs, if the grantee dies before attornment,33 the attornment to the heir is void, for if the attornment should be good, then the |Edition: Sheppard2003; Page: [105 a] heir would be in as a purchaser, where by the grant and meaning of the parties, these words, “his heirs,” were words of limitation to limit the estate of the grantee himself; and so it was held in Nichol’s Case in Plow. Com. fol. 483. that if a man leases lands to a man for life, and if the lessor dies without heir of his body, that then the lessee shall have the land to him and to his heirs; in that case, if lessee for life dies, and then the lessor dies without heir of his body, the heir of the lessee shall not have the land, as it was held clearly causa qua supra.34

And so the law is clear, as it is commonly agreed in our books, if two men exchange lands in fee-simple, or fee-tail, if both the parties die before the exchange be executed, of each part, the exchange is void; for if the heirs should enter, they would be in as purchasers by force of the words, which were words of limitation of the estate, and not of purchase. And upon the same reason is Brett’s and Rigden’s Case adjudged in Plow. Com fol. 342a stronger case than this case is. For a man devised lands to another and to his heirs, and the devisee Edition: current; Page: [33] died in the life of the devisor, and then the devisor died; and it was adjudged, that the heir should not take by the devise, for in that case the heirs are not named as words of purchase, but only to express and limit the estate which the devisee should have; for without the word “heirs,” the devisee could not have the fee-simple, and the heirs are named only to convey the land in fee-simple, and not to make any other to be purchaser than the first devisee. So in our case the heirs male of the body of Edward Shelley are named only to give Edward Shelley an estate-tail, and not to make any other purchaser than Edward Shelley only, and without those words he could not have had an estatetail; and therefore the uncle in our case cannot claim the land as a mere purchaser, but if he takes it in any sort, he shall take it in nature and course of a descent, and therefore quacunq. via data,35 the uncle cannot have the land; and if he take it in nature and course of a descent, (for as a purchaser he cannot take) then the elder son shall enter upon him, and so quacunq. via data the son of the elder son ought to have the land. And therefore to conclude: first, no execution could be sued against the issue in tail, because no execution was sued in the life of Edward Shelley. Secondly, admitting execution might have been sued against the issue in tail, and that execution was requisite to be had in the life of Edward Shelley, inasmuch as the lands were in lease for years, that the reversion was immediately vested in the recoveror by the judgment: thirdly, admitting execution might be sued against the issue in tail, and that the recovery was not executed till after the death of Edward Shelley; yet first, |Edition: Sheppard2003; Page: [105 b] forasmuch as it was impossible by the act of God that execution should be sued in the life of Edward Shelley; secondly, that the indentures guide the use, and direct it to the heirs male of the body of Edward Shelley by words of limitation; thirdly, that the use and estate do not commence originally in the uncle as a mere purchaser, but first vested in the uncle by force of the indentures made by Edward Shelley and the recovery had against him, and might have vested in Edward Shelley, and if it had been vested in Edward Shelley, then without doubt Richard Shelley had taken by descent; fourthly, that the estate is conveyed by way of limitation of use, which is always directed by the intent of the parties; fifthly, that it would be absurd and mischievous to adjudge the whole inheritance to be at the disposal of the recoverors, or of the sheriff, who never were trusted; and lastly, that Richard the uncle ought Edition: current; Page: [34] either to claim in nature or course of descent; and then no question but the entry of the defendant was lawful, or otherwise merely by purchase, which by the rules of law, and for the reasons aforesaid he cannot; and therefore they concluded that the entry of Henry Shelley the defendant was lawful, and that judgment ought to be given against the plaintiff, that he should take nothing by his bill.

After the said case had been openly and at large argued at three several days by the counsel of each side in the King’s Bench, the Queen hearing thereof (for such was the rareness and difficulty of the case, being of importance, that it was generally known) of her gracious disposition, to prevent long, tedious, and chargeable suits between parties so near in blood, which would be the ruin of both, being gentlemen of a good and ancient family, directed her gracious letters to Sir Thomas Bromley, Knight, Lord Chancellor of England, who was of great and profound knowledge and judgment in the law, thereby requiring him to assemble all the justices of England before him, and upon conference had between themselves touching the said questions, to give their resolutions and judgments thereof; and thereupon the Lord Chancellor in Easter term, in the 23d year of her reign, called before him at his house, called York-house, Sir Christopher Wray, Knight Lord Chief Justice of England, and all his companions, Justices of the Queen’s Bench, Sir James Dyer, Knight Lord Chief Justice of the Court of Common Pleas, and all his companions, justices of the same Court; and Sir Roger Manwood, Knight Lord Chief Baron of the Exchequer, and the Barons of the Exchequer, before whom the questions aforesaid were moved and shortly argued by Serjeant Fenner, on the plaintiff’s part, and by one on the defendant’s part.36 At which time the Lord |Edition: Sheppard2003; Page: [106 a] Chancellor was of opinion for the defendant, and openly declared his opinion before all the justices, that upon the third question the law was for the defendant, and therefore the defendant’s entry upon the uncle was lawful: but the said questions were not resolved at that time, the said justices desiring time to consider of the questions. And eight or nine days after in the same term, all the said justices and Barons met together in Serjeant’s-Inn, in Fleet Street, for the resolution of the said case, and there the case was again shortly argued by them; after which arguments the justices at that time did confer among themselves, and took further time to consider of the said questions in the next Edition: current; Page: [35] vacation, till the beginning of Trinity term then next following; and accordingly in the beginning of Trinity term, after great study and consideration of the said record of the special verdict, all the said justices and Barons met again in Serjeant’s Inn, in Fleet Street; at which time upon conference amongst themselves, all the justices of England, the Lord Chief Baron, and the Barons of the Exchequer, except one of the puisne justices of the Court of Common Pleas, agreed that the defendant’s entry upon the said Richard the uncle was lawful; and four or five days after their last meeting, one of the defendant’s counsel came to the Bar in the Queen’s Bench, and moved the justices to know their resolutions in the said case; for their resolution was not before known to the defendant, nor to his counsel. And Sir Christopher Wray, Knight Lord Chief Justice, answered, that they were resolved; and thereupon asked the plaintiff’s counsel being then at the Bar, if they could say any more on the plaintiff’s part, who answered, That they had said as much as they could: and also demanded of the defendant’s counsel, if they had any new matter to say for the defendant, who said, No. And then the said Chief Justice gave judgment, that the plaintiff should take nothing by his bill: And because the counsel of both sides, who were present, were desirous to know upon which of the said points their resolution did depend, the said Chief Justice openly declared, That as to the first point, the better and greater part of all the justices and Barons held that execution might be sued against the issue in tail, because the right of the estate-tail was bound by the judgment against the tenant in tail, and the judgment over to have in value, and that in favour of common |Edition: Sheppard2003; Page: [106 b] recoveries, which are the common assurances of the land.

And as to the second point, they were all agreed, that the reversion was not in the recoverors immediately by the judgment: But he said, that all the justices of England and Barons of the Exchequer, except one of the justices of the Common Pleas, were agreed as to the third point. That the uncle was in, in course and nature of a descent, although he should not have his age, nor be in ward, &c.: First, because the original act, viz. the recovery, out of which all the uses and estates had their essence, was had in the life of Edward Shelley, to which the execution after had a retrospect: Secondly, because the use and possession might have vested in Edward Shelley, if execution had been sued in his life: Thirdly, the recoverors by their entry, nor the sheriff by doing of execution, could not make whom they pleased inherit: Fourthly, because the uncle claimed the use by force of the recovery, and of the indentures by words of limitation, and not of purchase. These were, as the Chief Justice said, the Edition: current; Page: [36] principal reasons of their judgment. And it was resolved by them all, that the recovery, notwithstanding the death of Edward Shelley in the morning between the hours of five and six on the same day, was good enough. And so it was resolved by Sir Thomas Bromley, Knight Lord Chancellor of England, Sir Christopher Wray, Knight Lord Chief Justice of England, Sir James Dyer, Knight Lord Chief Justice of the Court of Common Pleas, Sir Roger Manwood, Knight Lord Chief Baron of the Exchequer, Sir Thomas Gawdy, Knight one of the Justices of Her Highness’s Bench, and by all the Justices of the Queen’s Bench, and by all the Justices, saving one of the Common Pleas, and by all the Barons of the Exchequer, that the right of the defendant was good, and his entry lawful, and judgment was given accordingly.

Edition: current; Page: [37]

Part Two of the Reports

The Second Part of Coke’s Reports was published in 1602. It was originally published in Law French and entitled Le Second Part Des Reportes Del Edvvard Coke Lattorney General Le Roigne, De Divers matter en Ley, avec graunde & mature consideration resolve, & adjudge, queux ne sueront unques resolve ou adjudge par devant, & les raisons & causes de yceux durant le Raigne de trefillure & renomes Roygne Elizabeth, le fountaine de tout Justice & la vie de la Ley. In English, The Second Part of the Reports of Sir Edward Coke, Knight., Her Majesty’s Attorney-General, of divers Matters In Law, with great and Mature consideration Resolved and Adjudged, which were never Resolved or Adjudged Before: and the Reasons and Causes thereof: During the Reign of the most Illustrious and Renowned Queen Elizabeth, the Fountain of all Justice, and the life of the Law. The whole of the cases in this part is a series of issues in the control, transfer, and obligations arising from the ownership of property, including some cases, such as the problem of bankrupts, dealing with satisfaction of debts from property. There is a lesser emphasis in this part on both the style and the content of pleading and on the effect of pleading in deciding the dispute.

(Preface) To the learned Reader.

There are (sayth Euripides) three Virtues worthy [of] our meditation; To honour God, our Parents who begat us, and the Common Lawes of Greece: The like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honour to thy Parents, yeeld due reverence and obedience to the Common Lawes of England: For of all Lawes (I speake of humane) these are most equall, and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defend against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Records and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt.1 There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speake of humane) so necessary for all estates, and for all causes, concerning goods, lands, or life, as the Common Lawes of England. If the beauty of other Countries be faded and wasted with bloudy Warres, thanke God for the admirable peace wherein this Realme hath long flourished under the due administration of these Lawes: If thou readest of the tyranny of other Nations, wherein powerfull will and pleasure stands for Law and Reason, and where upon conceit of mislike, men are suddenly poysoned, or otherwise murthered, and never called to answer; Praise God for the Justice of thy gracious Soveraigne, who (to the Worlds admiration,) governeth her people by Gods goodnesse in peace and prosperity by these Lawes, and punisheth not Edition: current; Page: [40] the greatest offendor, no, though his offence be crimen laese Majestatis,2 Treason against her sacred person, but by the just and equall proceedings of Law.

If in other Kingdomes, the Lawes seeme to governe: But the Judges had rather misconstrue Law, and doe injustice, then displease the Kings humour, whereof the Poet speaketh, Ad libitum Regis, sonuit sententia Legis.3 Blesse God for Queene Elizabeth, whose continuall charge to her Justices agreeable with her ancient Lawes, is, that for no commandement under the great or privie Seale, writs or letters, common right bee disturbed or delayed. And if any such commandement (upon untrue surmises) should come, that the Justices of her Lawes should not therefore cease to doe right in any point: And this agreeth with the ancient Law of England, declared by the great Charter, and spoken in the person of the King; Nulli vendemus, nulli negabimus, aut differemus Justiciam vel Rectum.4

If the ancient Lawes of this noble Island had not excelled all others, it could not be but some of the severall Conquerors, and Governors thereof; That is to say, the Romanes, Saxons, Danes, or Normans, and specially the Romanes, who, (as they justly may) doe boast of their Civill Lawes, would (as every of them might) have altered or changed the same.

For thy comfort and encouragement, cast thine eye upon the Sages of the Law, that have beene before thee, and never shalt thou finde any that hath excelled in the knowledge of these lawes, but hath sucked from the breasts of that divine knowledge, honesty, gravity, and integrity, and by the goodnesse of God hath obtained, a greater blessing and ornament then any other profession, to their family and posteritie: As by the page following, taking some for many, you may perceive; for it is an undoubted truth, That the just shall flourish as the Palme tree, and spread abroad as the Cedars of Libanus.5

Their example and thy profession doe require thy imitation: for hitherto I never saw any man of a loose and lawlesse life, attaine to any sound and perfect knowledge of the said lawes: And on the other side, I never saw any man of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.

If you observe any diversities of opinions amongst the professors of the Edition: current; Page: [41] Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis:6 And to say the truth, the greatest questions arise not upon any of the Rules of the Common Law, but sometimes upon Conveyances and Instruments made by men unlearned; Many times upon Wills intricately, absurdly, and repugnantly set downe, by Parsons, Scriveners, and such other Imperites: And oftentimes upon Acts of Parliament, overladen with provisoes, and additions, and many times upon a sudden penned or corrected by men of none or very little judgement in Law.

If men would take sound advise and counsell in making of their Conveyances, Assurances, Instruments, and Willes: And Counsellors would take paines to be rightly and truly informed of the true state of their Clyents case, so as their advise and counsell might be apt and agreeable to their Clients estate: And if Acts of Parliament were after the old fashion penned, and by such onely as perfectly knew what the Common Law was before the making of any Act of Parliament concerning that matter, as also how farre forth former Statutes had provided remedie for former mischiefes and defects discovered by experience; Then would very few questions in Law arise, and the learned should not so often and so much perplex their heads, to make atonement and peace by construction of Law betweene insensible and disagreeing words, sentences, and provisoes, as they now doe.

In all my time I have not knowne two questions made of the right of Discents, of escheates by the Common Law, &c. so certaine and sure the Rules thereof bee: Happy were Arts if their professors would contend, and have a conscience to be learned in them, and if none but the learned would take upon them to give judgement of them.

Your kinde and favourable acceptation (gentle Reader) of my former Edition, hath caused me to publish these few cases in performance of my former promise, and I wish to you all no lesse profit in reading of them, then Iperswade my selfe to have reaped in observing of them: This onely of the learned I desire:

Manser’s Case.

(Painter v. Manser) (1584) Easter Term, 26 Elizabeth I

In the Court of Common Pleas. First Published in the Reports, volume 2, page 1.*

Ed.: Manser and his son promised Painter to keep certain lands free from legal encumbrances and to sign whatever legal papers Painter required in order to do so. When Painter sent them a legal document to release him of liability, Manser said his son could not read and would not sign it until it had been read to them by a lawyer. When Painter sued Manser, using the appropriate writ of debt, Manser replied in a pleading that he had only delayed to meet with lawyers, that he had maintained the land as promised and that he himself had executed the lease. The court held that a person who cannot read a language asked to sign a document in that language must be allowed to have it read, but this allowance cannot expand the time in which it must be signed and sealed. Manser’s other claims were lost for a failure to plead facts necessary to sustain an affirmative pleading, and Painter won the case. The opinion is notable for its discussion of laymen’s required knowledge of the law, for its use of relative weights of fact in comparing a precedent, and for its instructions on the requirements of pleading. Look also for Coke’s admonition that lawyer’s documents should be written to be understood by the parties who need them.

Between Painter and Manser, the case was such: Painter brought an action of debt upon an obligation against Manser, and the defendant pleads the obligation was with condition; scil. That whereas the defendant had enfeoffed the plaintiff of certain lands, if the plaintiff shall at all times following enjoy those lands discharged, or otherwise kept indemnified from all incumbrances, &c.; and also, if the defendant and John Manser his son, shall do all acts and devices for the better assurance of those lands to him, as by the plaintiff, or his counsel learned in the law, shall be devised, that then the obligation shall be void; And pleaded that the plaintiff had enjoyed the said lands discharged Edition: current; Page: [43] and kept indemnified from all incumbrances, &c.; And that the plaintiff devised a writing of release to be made by the defendant and John his son, to the plaintiff, which the defendant did seal and deliver as his deed; and because his son was not lettered, and could not read, the said John prayed the plaintiff to deliver it to him, to be shewed to some man learned in the law, who might inform him if it was made according to the condition; and said further, that if it was according to the condition, he would deliver it, which the plaintiff refused; wherefore he did not deliver it, as it was lawful he should not: whereupon the plaintiff demurred; and it was adjudged for the plaintiff. In this case three points were resolved.

1st. If a man, not lettered, be bound to make a deed, he is not bound to seal and deliver any writing tendered to him, unless somebody be present who can read the deed to him, if he requires the writing to be read to him; And if the deed be in Latin, French, or other language (which the party who is to execute the writing doth not understand), in such case, if the |Edition: Sheppard2003; Page: [3 b] party demands that one should read and interpret the writing to him, and none be present that can read and expound the tenor of the same in that language that the party who is to deliver the deed understands, there the party may well refuse to deliver it. So although the man can read, yet if the deed be in Latin, French, or other such language as the party who is to execute cannot understand, if he require that the writing be read or expounded to him in such language as he may understand it, and nobody be there to do it, the party may refuse to deliver it. And it is to know that quod ignorantia est duplex, viz. facti & juris; & rursum ignorantia facti (quoad rem nostram attinet) est duplex, videlicet, lectionis & linguae.1 Note, reader, that ignorance in reading, or ignorance of the language, quae sunt ignorantia facti,2 may excuse; but as is commonly said, ignorantia juris non excusat:3 For notwithstanding that there it was said, that although the party can read and knows the language also in which the writing was made, yet he does not know the sense and operation of the words in law, and whether they agree with the condition of his obligation, or not; And therefore some of the justices thought that in such case the party shall have Edition: current; Page: [44] reasonable time to shew the writing to his counsel at law to be instructed by them, whether it be according to what he is bound to do, and namely when there is no time limited in which it is to be done, so as in regard that the other party might request the doing of it when he pleased, it is not possible for the party to have his learned counsel at all times with him: and therefore prima faeie,4 it seemed reasonable, that the party shall have reasonable time, as afore said: But at length, upon the view of the record of a judgment in this Court, anno 16 Eliz. in the time of the Lord Dyer, between Sir Anthony Cook and Wotton, that upon such request made to Sir Anthony Cook by Wotton, to seal an indenture, Sir Anthony, who was not learned in the law, was obliged to seal it peremptorily at his peril, and could not obtain convenient time to consult upon it with his counsel; hereupon it was resolved in the case at the Bar according to the said judgment. See the case now reported by the Lord Dyer. Trinit. 16 Eliz. Dier 337, 338. And it was said, that the case at the Bar was stronger than that of Sir Anthony Cook; for in this case the defendant obliged himself, that his son, who was a stranger to the obligation, should do, &c.: in which case he has undertaken that his son shall do it at his peril; for he that is obliged, undertakes more for a stranger than for himself in many cases. Vide 33 Hen. 6. 16b. 36 Hen. 6. 8. 2 Edw. 4. 2. 15 Edw. 4. 5b. 22 Edw. 4. 43. and 10 Hen. 7. 14b.

2d. It was resolved, that the [Defendant’s] pleading was insufficient: for he hath pleaded, that the plaintiff had enjoyed the |Edition: Sheppard2003; Page: [4 a] land discharged and kept harmless from incumbrances, where he ought to have shewed how: So if he had pleaded, that he had saved him harmless, he ought to have shewed how; but in such case, if he had pleaded in the negative, non fuit damnificatus,5 there it is otherwise. Secondly, he hath pleaded, quod quoddam scriptum relaxationis,6 was sealed and delivered, and doth not shew whether the release concerns the lands mentioned in the condition; and for all these causes the plaintiff had judgment to recover.

Note reader, there is great reason, that the writing should be expounded in such language, that the party may understand it, although he could read; because, by the law, he is at his peril to deliver it presently upon request, and hath not time to consult upon it with learned counsel.

Edition: current; Page: [45]

The Case of Bankrupts.

(Smith v. Mills) (1589) Trinity Term, 31 Elizabeth I

In the Court of the King’s Bench. First Published in the Reports, volume 2, page 25a.

Ed.: John Cook, a merchant, went bankrupt, owing Robert Tibnam £64 and another group of creditors £273, 12d. The second group of creditors got a commission in bankruptcy against Cook. Cook gave part of his goods to Tibnam in partial payment of his debt, and Tibnam sold them. But the bankruptcy commissioners sold the same goods to the group of creditors in partial satisfaction of their debts. In an important case construing the then-two-decade-old bankruptcy statute, Chief Justice Wray of the King’s Bench held that the sale by the commissioners was good, that the purpose of the statute was to protect all of the creditors of a bankrupt, and that a bankrupt debtor cannot give preferential settlements to one creditor, but both debtor and creditors must accept an equal settlement for all of the creditors.

Gregory Smith, Cullamor, and other good merchants of London, brought an action upon the case upon trover and conversion of divers goods, in London, against Thomas Mills, and upon not guilty pleaded, the jury gave a special verdict to this effect: John Cook, of Spalding, was possessed of the same goods, and exercising the trade of buying and selling, 30 Januarii, 29 Eliz. became a bankrupt, and absented himself secundum formam statuti,1 (which was found at large), and the said 30 Januarii was indebted to the plaintiffs, being subjects born, in £273 12d. pro merchandizis per quemlibet eorum prius venditis;2 and then also was indebted to Robert Tibnam, being also a subject born, in £64. Afterwards, 12 February, 29 Eliz. the plaintiffs exhibited a petition to the Lord Chancellor to have a commission upon the Statute of Bankrupts; and 17 February, 29 Eliz. a commission was granted, according to the said statute, under the Great Seal, to William Watson and others. And afterwards, 21 Februarii, 29 Eliz. John Cook gave and delivered the said goods to Tibnam, in satisfaction Edition: current; Page: [46] of part of his said due debt, the goods being of the value of £24. Andafterwards, ultimo Martii,3 29 Eliz. the commissioners, by deed indented, sold to the plaintiffs jointly the said goods, and at the same time the said Mills, then factor to Tibnam in ea parte,4 refused to come in as creditor, but claimed the said goods as the proper goods of his master, by the gift aforesaid; and afterwards the goods came to the defendant’s hands, and he converted them; but whether the said sale of the said commissioners, notwithstanding the said gift and delivery to Tibnam, be good or not, that was the doubt referred to the consideration of the Court. And judgment was given by Wray, |Edition: Sheppard2003; Page: [25 b] Chief Justice, and the whole Court, for the plaintiffs. And in this case divers points were resolved:

1st, That the said sale made by the said commissioners, was good; and because the doubt arose only upon the words and intent of the stat. of 13 Eliz. cap. 7., the Court considered the several parts and branches thereof: First, the Act describes a bankrupt, and whom he defrauds, scil. the creditors. 2. To whom the creditors should complain for relief, scil. to the Lord Chancellor. 3. How, and by what way, relief and remedy is provided, scil. by force of a commission under the Great Seal, &c. 4. The authority of the commissioners, scil. to sell, &c. that is to say, to every one of the creditors a portion, rate and rate alike, according to the quantity of his or their debt. So that the intent of the makers of the said Act, expressed in plain words, was to relieve the creditors of the bankrupt equally, and that there should be an equal and rateable proportion observed in the distribution of the bankrupt’s goods amongst the creditors, having regard to the quantity of their several debts; so that one should not prevent the other, but all should be in aequali jure.5 And so we see in divers cases, as well as the Common Law, as upon the like statutes, such constructions have been made; for, as Cato saith, Ipsae etenim leges cupiunt ut jure regantur;6 And therefore it is held, in 35 Hen. 8. tit. Testaments, Br. 19. a man holdeth three manors of three several lords by knights service, each manor of equal value, he cannot devise two manors and leave the third to Edition: current; Page: [47] descend, according to the generality of the words of the Acts of 32 & 34 Hen. 8. of Wills, for then he should prejudice the other two lords, but, by a favourable and equal construction, he can devise but two parts of each manor, so that equality between them shall be observed. And in 4 Edw. 3. Assize 178. the lord of a town cannot improve it all, leaving sufficient common in the lands of other lords, within the Statute of Merton, cap. 4. And so, in cases at the Common Law, an equality is required; as, in 11 Hen. 7. 12b. a man binds himself in an obligation and his heirs, and hath heirs and lands on the part of his father and on the part of his mother, both heirs shall be equally charged; 48 Edw. 3. 5a, 5b. in dower, if the heir be vouched in three several wards within the same county, he shall not have execution against one only, but all shall be equally charged; 29 Edw. 3. 39. the like case. So here, in our case, there ought to be an equal distribution secundum quantitatem debitorum suorum;7 but if, after the debtor becomes a bankrupt, he may prefer one (who peradventure hath least need), and defeat and defraud many other poor men of their true debts, |Edition: Sheppard2003; Page: [26 a] it would be unequal and unconscionable, and a great defect in the law, if, after that he hath utterly discredited himself by becoming a bankrupt, the law should credit him to make distribution of his goods to whom he pleased, being a bankrupt man, and of no credit; but the law, as hath been said before, hath appointed certain commissioners, of indifferency and credit, to make the distribution of his goods to every one of his creditors, rate and rate alike, a portion, according to the quantity of their debts, as the statute speaketh. Also, the case is stronger, because this gift is an assignment of the bankrupt after the commission awarded under the Great Seal, which commission is matter of record, whereof every one may take conusance.

Lastly and principally, the Court relied upon other words in the Act, scil. “And that every direction, bargain and sale, &c. done by the persons so authorised as is aforesaid, in form aforesaid, shall be good and effectual in law, &c., against the said offender, &c., and against all other persons claiming by, from, or under such offender, by any act had, made, or done, after any such person shall become bankrupt, &c.:”

So that, in as much as this assignment and delivery of the said goods was after the said Cook became bankrupt, notwithstanding that, the commissioners Edition: current; Page: [48] may well sell them. And the Court resolved, that the provisoconcerning gifts and grants bona fide,8 makes no gift or grant good, which the bankrupt makes after he becomes bankrupt, but excludes them out of the penalty inflicted by the same proviso. And divers exceptions were taken to the verdict by the defendant’s counsel.

1. That it was not found, that the said sale by the commissioners of the said goods was by deed enrolled, as they objected the words of the said Act require: but to that, it was answered, and resolved by the Court, that the words of the Act concerning enrolment of the deed coming next after these words, “goods and chattels,” are, “or otherwise to order the same for true satisfaction and payment, &c., and that every direction, order, &c., shall be good and effectual;” so this sale, without deed enrolled, is good enough.

2. It was objected, that it was not found that the commissioners had first seen the goods before their sale; for the words of the Act are, scil. “to be searched, viewed, &c.:” to that, it was answered, and resolved, that the said words, “or otherwise to order, &c.” “and that every direction, &c.” refer it to the discretion of the commissioners, and peradventure they cannot come to the sight of them.

3. That the commissioners ought to make several distributions to the several creditors, and not to make a joint sale, or assignment, to several creditors; for if |Edition: Sheppard2003; Page: [26 b] he owed A. £20, B. £20, and C. £5, a joint sale, or assignment, to A. B. and C. is not according to the power given to the commissioners by the said Act; for the Act limits them to make disposition “amongst the creditors, &c., to every one a portion, rate and rate alike, according to the quantity of their debts;” but in this case, he, who hath the least debt, shall have as great interest in the goods, as he who hath the greatest; and so such assignment, in the said case put of several debts, is void, quod fuit concessum per Curiam.9 But to that it was answered, and resolved by the Court, that in the case at the Bar, it appears by the verdict, that the debt due to the plaintiffs was joint, for they found, ut supra, that the said John Cook was indebted to the plaintiffs in £273 12d., which shall be intended a joint-debt, and so the sale good, in the case at the Bar.

4. That for as much as the words of the Act are, “To every of the said Edition: current; Page: [49] creditors a portion, rate and rate alike, distribution ought to be made to all the creditors:” But here it appears, that the said Tibnam was a creditor, and £64 due to him, and yet nothing is allotted or assigned to him, so the sale is void: To that it was answered, and resolved by the Court, that in this case the factor of the said Tibnam, in ea parte, refused to come in as a creditor, but claimed all the goods: And this Act gives benefit to those who will inquire and come in as creditors, and not to those, who either out of obstinacy refuse, or through carelessness neglect, to come before the commissioners and pray the benefit of the said statute; for vigilantibus et non dormientibus jura subveniunt,10 for otherwise a debt might be concealed, or a creditor might absent himself, and so avoid all the proceedings of the commissioners by force of the said Act. And every creditor may take notice of the commission, being matter of record, as is aforesaid, and so no inconvenience can happen to any creditor who will be vigilant, but great inconvenience will follow, and the whole effect of the Act be overthrown if other construction shall be made.

In the Court of King’s Bench. First Published in the Reports, volume 2, page 46a.

Ed.: When Henry VIII dissolved the monasteries and religious houses in England, all of their property went to the Crown under a statute that also freed all such property from the obligation to pay tithes, or religious taxes, which went to the estates of ecclesiastical superiors. A later statute gave the Crown title to these same lands but didnotfree property from the obligation of tithes. Prior to the dissolution, a religious college had owed tithes to its local rectory. After dissolution, the lands of the college went to Lord Cobham, and the rectory went to the Archbishop, whose tenant, Balser, attempted to collect tithes from Lord Cobham’s tenant, Green. Green sought a prohibition against the Archbishop, which is to say an order from the court forbidding the Archbishop to act. The case turns on a statutory analysis Edition: current; Page: [50] of the language of the two statutes, particularly the later statute, passed in 1547, the first year of Edward VI. The analysis of the statute sets forth many rules on interpretation: a rule requiring two elements does not apply to one; the statement of a burden on an inferior person does not place a burden on a superior person, and that general words regarding the land do not apply to duties not arising from the land. Coke and others represented the Archbishop. The court held that the later statute was held to apply in this case and, because the tithes were owed at the time of the dissolution, the tithes were still owed. The Archbishop won.

In a prohibition in the King’s Bench, between Green and Balser; the case was, That in Maidstone was a religious College, to which the Rectory of Maidstone was appropriated. And the said College had divers lands and tenements within the said parish of Maidstone, and all was given to the King by the statute of 1 Edw. 6. And afterwards the rectory was conveyed to the Bishop of Canterbury, and the lands, parcel of the possessions of the said college, were conveyed to the Lord Cobham; and now the farmer of the Lord Cobham brought a prohibition against Balser, farmer of the said rectory, to Whitgift, Archbishop of Canterbury, and in his prohibition he alleged the branch of the statute of 31 Hen. 8. concerning discharge of tithes; and shewed, that the master of the said College was seised of the said lands, and of the said rectory, simul & semel,1 as well at the time of the making of the Act of 31 Hen. 8. as at the making of the said Act of 1 Edw. 6., and held them discharged of tithes; and shewed the said Act of 1 Edw. 6., by which the said college was given to King Edward the sixth; and thereupon the defendant did demur in law. And in this case divers questions were moved.

1. If the said college came to the King as well by the statute of 31 Hen. 8., as by the statute of 1 Edw. 6.; for if this college came to the King by the statute of 31 Hen. 8. then without question the said branch of the said Act concerning the discharge of tithes, extends to it: and it was objected by the plaintiff’s counsel, that the words of the said Act are general, scil. “that all Monasteries, &c. Colleges, &c. which hereafter shall happen to be dissolved, &c. or by any other |Edition: Sheppard2003; Page: [46 b] means come to the King’s Highness &c., shall be vested, deemed, and adjudged by authority of this Parliament in the very actual and real possession Edition: current; Page: [51] of the King, &c.” And when this College came to the King by the stat. 1 Edw. 6. it came to the King within these words of the Act “by any mean.” But it was answered by the defendant’s counsel, and resolved by the Court, That that could not be for several reasons:

1. When the statute speaks of dissolution, renouncing, relinquishing, forfeiture, giving up, &c. which are inferior means, by which such religious Houses came to the King, then the said latter words “or by any other means” cannot be intended of an Act of Parliament: which is the highest manner of conveyance that can be; and therefore the makers of the Act would have put that in the beginning, and not in the end, after other inferior conveyances, if they had intended to extend the Act thereunto. But these words “by other means” are to be so expounded, scil. by any other such inferior means. As it hath been adjudged, that bishops are not included within the statute of 13 Eliz. cap. 10, for the statute beginneth with colleges, deans and chapters, parsons, vicars, and concludes with these words, “and others having spiritual promotions;” these latter words do not include bishops, causa qua supra.2 So the statute of West. 2. cap. 41. the words of which are, statuit Rex, quod si abbates, priores, custodes hospital’ & aliarum domorum religiosarum, &c.3 These latter words do not include bishops, as it is holden 1 & 2 Phil. and Mary, Dyer, 100. 109. for the cause aforesaid.

2. The said clause of 31 Hen. 8. that the said religious houses shall be in the King by authority of the same Act; and the statute of 1 Edw. 6. enacts, that all colleges; &c. shall be by authority of this Parliament, adjudged and deemed in the actual and real possession of the King; so that the latter Parliament being of as high a nature as the first was, and providing by express words, that the colleges shall be, by authority of the said Act, in the actual possession of the King, the said college cannot come to the King by the Act of 31 Hen. 8. It is said in 29 Hen. 8. Parliament. & Stat. Br. if lands be given to tenant in tail in fee, his issue cannot be remitted, for the latter Act doth take away the Stat. de Donis, &c., 3. The usual form of pleading of them, which came to the King by the statute of 1 Edw. 6., and by the Act of 31 Hen. 8., doth manifest the law clearly, scil. to plead surrender or relinquishment, Edition: current; Page: [52] &c. virtute cujus ac vigore4 of the statute of 31 Hen. 8. the King was seised; but to plead the Act of 1 Edw. 6. of Chauntries, virtute cujus ac vigore of the statute of 31 Hen. 8. was never heard or seen: and for all these causes it was resolved, that this college came to the King by the Act of 1 Edw. 6., and not by the Act of 31 Hen. 8.

The second question was, forasmuch as the said college came to the King by the Act of 1 Edw. 6., and not by the Act of 31 Hen. 8. |Edition: Sheppard2003; Page: [47 a] whether the said branch of discharge of tithes extends to such colleges which after came to the King by any other Act, and not by the Act of 31 Hen. 8.; and it was objected, that the said branch should extend to colleges which come to the King by any other Act, for it was said, that although the preamble of the said branch saith, “The late monasteries, &c.” yet this is not literally to be understood of monasteries only which were dissolved before the Act, for “late” is to be construed according to the body of the Act, scil. of those which were dissolved before, or which should come to the King afterwards by the said Act, so that when they are dissolved and in the King by force of this Act, this Act may call them “late;” quod fuit concessum per Curiam.5 Also they said, that the words of the branch itself are general, scil. “any monasteries, &c. colleges, &c. without any limitation, so that they conceived, that the words of the said branch, made for them, and that this clause of discharge should extend to all monasteries, &c. colleges, &c. quaecunque,6 by what means soever they came to the King; and they said, that the intent of the Act was so, for the intent of the Act was to benefit the King, and to make the subject more desirous of purchasing them, &c. Against which it was said by the defendant’s counsel, and resolved by the Court, that neither the words, nor the meaning of the said branch, did extend to any monasteries, &c. but to those only, which came to the King by the Act of 31 Hen. 8.; for it would be absurd, that the branch of the Act of 31 Hen. 8. should extend to a future Act of Parliament, which the makers of the Act of 31 Hen. 8., without the spirit of prophecy, could have no foreknowledge of; but this clause of discharge of tithes, shall extend only to those possessions which came to the King by the same Act. And where it was said, that the first words of the branch were general, the same is true, but Edition: current; Page: [53] the conclusion of that branch is, “in as large and ample manner as the late abbots, &c.” So that “late” being so intended, as it hath been agreed on the other side, scil. only of religious houses which came to the King by 31 Hen. 8.; it is clear, that that branch cannot extend to this college, which came to the King by the Act of 1 Edw. 6.

The third question was, admitting that the said college had come to the King by the stat. of 31 Hen. 8. If such general allegation of unity of possession of the rectory and of the lands in it, was sufficient; and it was resolved by the Court, That it was not sufficient; for no unity of possession shall be sufficient within the same Act but a lawful and perpetual unity of possession time out of mind, as it was adjudged M. 34 & 35 Eliz. in a prohibition between Valentine Knightly, Esq. plaintiff, and William Spencer, Esq. defendant, where the case was, the plaintiff in the prohibition shewed, that Philip, Abbot of Evesham, and all his predecessors, time out of mind were seised as well of the rectory impropriate of |Edition: Sheppard2003; Page: [47 b] Badby cum Newman, in the county of Northampton, as of the manor of Badby cum Newman, in Badby aforesaid, in his demesne, as of fee, in the right of his monastery, simul & semel, until the suppression of the same monastery, quodque ratione inde,7 the said abbot, and all his predecessors, until the dissolution of the same monastery, had held the said manor discharged from the payment of tithes, until the dissolution of the same house; and shewed the branch of the statute of 31 Hen. 8. concerning discharge from the payment of tithes, and conveyed the said manor to Knightly, and the said rectory to Spencer, who libelled in the Spiritual Court for tithes of the demesnes of the said manor, against Knightly, who upon the matter aforesaid brought the prohibition, and it was adjudged, that the prohibition was maintainable; For the said branch of the Act of 31 Hen. 8. was made to prevent two mischiefs, one, that otherwise all the impropriations of rectories to houses of religion, had been disappropriate; for if the body to which the rectory is appropriated, had been dissolved, the impropriation to such body had been dissolved also, as appears by 3 Edw. 3. 21 Edw. 4. 1a. 21 Hen. 7. 4b. F. N. B. 33k, 33l. Another mischief was, that whereas many religious persons were discharged from the payment of tithes, some by their order, as the Cistertians, Templars, Hospitallers of St. John of Jerusalem; as appears by 10 Eliz. Dyer 277; some by prescription, some by composition, some by the Pope’s bulls, Edition: current; Page: [54] &c.; and the greater part of religious houses, as the said Abbey of Evesham was, were founded before the council of Lateran; and before time of memory, it would be infinite, and in a manner impossible by any search, to find all the discharges and immunities which such religious houses had. And for this reason also the said branch was made. And the great doubt in the said case, was conceived upon this word “discharge,” for it was said, that unity of possession was not any discharge of tithes, and by consequence was not such discharge as was within the intent of the said Act. And for the force of this word “discharge,” 18 Edw. 3. Bar. 247. 35 Hen. 6. 10b. 22 Edw. 4. 40B. & 6. Hen. 7. 10b. were cited. But as to that it was resolved by the Court:

1. That the statute doth not say, discharge of tithes, but discharge ofpayment of tithes.

2. The statute doth not say, discharge of payment of tithes, absolutely, but as freely as the abbot, &c. held it at the day of dissolution; and then this word “discharge” being referred to a certain time, may be intended of a suspension by unity. As if a man seised of a rent disseises the tenant of the land, and makes a feoffment with warranty, the feoffee shall vouch as of land discharged of the rent, and yet the rent was but suspended; |Edition: Sheppard2003; Page: [48 a] but every suspension is a discharge for a time, and the discharge being referred to the time of the warranty, extends to the suspension. Quod vide8 30 Edw. 3. 30. 3 Hen. 7. 4. 41a. 21 Hen. 7. 9a. b. F. N. B. 135e.

3. The statute saith, “as freely as the abbot, &c. retained the same.” And it was said, that it was the intent of the King, and of the makers of the Act, to discharge the land of payment of tithes in such cases of unity of possession, being a general case, to induce purchasers the rather to purchase the land for greater prices.

4. For the infinite impossibility, and the impossible infiniteness, as hath been said, all the discharges which such religious houses had, could not be known; and the same construction was made in this Court, Hil. 24. Eliz. in a prohibition between John Rose and William Gurling, for tithes in Flixton in the county of Suffolk. See 18 Eliz. Dyer 349. The Parson of Peykirk’s Case. And it was likewise resolved in the said Case of Knightly, that nothing could be traversed but the unity, for ratione inde, &c.9 is but the conclusion and the Edition: current; Page: [55] judgment of the law upon the precedent matter; but it was also resolved, that if before the dissolution the farmers of the demesnes had paid tithes, &c. to the abbot, &c., then the intendment of the law, by the reason of the said unity of possession (which ought to be time out of mind), that the land was discharged of the payment of tithes, will not hold place. For as Bracton saith, stabitur presumptioni donec probetur in contrarium.10 But if the lands were always occupied by the abbots, or demised over, and no tithes at any time paid for the same before the Act, although the land be conveyed to one, and the rectory to another, yet the land is discharged of the payment of tithes; And if the farmers of the demesnes had paid tithes before the Act, the same should be pleaded by the defendant in the prohibition, and issue thereupon might be taken, as it was in the like case, Trin. 38 Eliz. in this Court, between Edward Grevil, Esq. possessor of the demesnes of the manor of Nasing, in the county of Essex, plaintiff, and Martin Trot, proprietor of the Rectory of Nasing, defendant, were against such unity of possession in manner and form aforesaid alleged by the plaintiff in the Abbot of Waltham and his predecessors, &c. in the rectory and demesnes, and with like conclusion as aforesaid: The defendant alleged payment of tithes by the farmers of the said demesnes (without any traverse by the rule of the Court) and issue was joined thereupon, and it was tried against Trot, and therefore the prohibition stood. And it was likewise resolved, that although the plaintiff in the case at Bar alleged, that the master of the said college, at the time of the making of the said Act of 1 Edw. 6., held them |Edition: Sheppard2003; Page: [48 b] discharged of tithes; and although the lands of such religious persons may be discharged of tithes by prescription, as it hath been lately adjudged in the case of one Wright in this Court, or by composition, &c.; yet such general allegation that he was discharged of tithes, was not sufficient, without shewing how he was discharged, either by prescription, composition, or other lawful means. But if the land had come to the King by the statute of 31 Hen. 8. then by force of the said branch of discharge of the payment of tithes, such general allegation, that such prior, &c. held the land at the time of the dissolution of the said priory discharged of the payment of tithes, without shewing how, had been sufficient, and so is the common use in prohibitions.

The fourth question, in the case at Bar, was, whether any house which was Edition: current; Page: [56] ecclesiastical, and not religious, as bishops, deans and chapters, archdeacons, and the like, shall be within the Act of 31 Hen. 8.; for no house within the Act of 31 Hen. 8. is said religious, but such which was regular, and which consisted of such persons as had professed themselves, and vowed three things, that is to say, obedience, voluntary poverty, and perpetual chastity; and those are called in our law, dead persons in law. For after such profession their heirs shall have their lands, and their executors or administrators their goods, and that was called mors civilis;11 which was the reason that when a lease for life was made, always the Habendum12 was, to have and to hold to him durante vita sua naturali,13 for it was then taken, that if the Habendum hadbeen durante vita sua (without saying naturali) the civil death, that is to say, the entry into religion, had determined it. But it was resolved by the Court, that no ecclesiastical house, if it be not religious, is within the Act of 31 Hen. 8. for divers reasons:

1. The words of the Act are always, through the whole Act, in the copulative, “religious and ecclesiastical,” so that if it be ecclesiastical only, it is out of the Act.

2. The makers of the Act, gave the King as well those religious and ecclesiastical houses which were dissolved, &c. as those which should be afterwards dissolved; but none were dissolved before the Act, but only religious houses, and no house ecclesiastical only; for no bishoprick, deanery, archdeaconry, &c. or such-like ecclesiastical and secular corporation was dissolved before; therefore no ecclesiastical house which was not religious, (which after the Act shall be dissolved,) was within the intent and meaning of the said Act.

3. It is enacted by the statute of 31 Hen. 8. that all religious and ecclesiastical houses, which after shall be dissolved, &c. shall be in the actual possession of the King, in the same state and condition as they were at |Edition: Sheppard2003; Page: [49 a] the time of the making of the said Act; upon which clause of the statute it was adjudged, Pasch. 5. Eliz. Rot. 1029, reported by Serjeant Bendloes, and Mich.6&7 Eliz. Dyer 231., and Plow. Com. 207., that if an abbot after the said Act grants the next avoidance of an advowson, or makes a lease for years, and afterwards surrenders, so that by the Act, the possessions of the abbey ought to be in the King, in the same state and condition as they were at the time of the making Edition: current; Page: [57] the Act; and at the time of making of the Act, the land and the advowson were discharged of all interest, for this reason it was adjudged in both cases, that the lease and the grant were void by the said Act. But if a dean and chapter, and other such ecclesiastical and secular corporations shouldbewithin the said Act, then if they should surrender their possessions, they would avoid all their own grants and leases, which would be dangerous. And that was one principal reason that the colleges, chantries, &c. which came to the King by the Acts of 37 Hen. 8. or 1 Edw. 6. should not vest in the King by the Act of 31 Hen. 8., for the mischief before, for avoiding of their leases, grants, &c. And to conclude this point, it was held in the Common Pleas, in Parret’s Case, concerning the Priory of Frideswide, that if the house be not religious and regular, it is not within the Act of 31 Hen. 8.

And as to the opinion of 10 Eliz. Dyer 280. Corbet’s Case, Concerning the Priory of Norwich, it seems that that differs much from other deans and chapters, for the Dean and Chapter of Norwich was once religious, for they were prior and convent before; and yet that case was denied by Popham Chief Justice, and some other of the Judges, for the reasons and causes aforesaid.

Fifthly, it was held by the Court, that although it is provided by the statute of 1 Edw. 6. that the King shall have the lands of the colleges, &c. “in as ample and large manner as the said priests, wardens, &c. had or enjoyed the same,” that these general words should not discharge the land of any tithes, for they are not issuing out of land, but are things distinct from the land. For as the book is in 42 Edw. 3. 13. a. the prior shall have tithes of land against his own feoffment of the same land; and it is no good cause of prohibition, to allege unity of possession in a college, which came to the King by the statute of 1 Edw. 6., as a man may, by the statute of 31 Hen. 8., in an abbot, prior, &c., as aforesaid; for the statute of 1 Edw. 6. hath no such clause of |Edition: Sheppard2003; Page: [49 b] discharge of payment of tithes, as the statute of 31 Hen. 8. hath. And therefore such perpetual unity, as hath been said before, will not serve upon this Act of 1 Edw. 6. And afterwards a consultation14 was granted: and another consultation was granted the same term in another prohibition sued upon the same matter between Green and Buffken. And Laurence Tanfield and others, were of counsel with the plaintiff, and the Attorney-General and others with the defendant.

Edition: current; Page: [58]

Part Three of the Reports

The Third Part of Coke’s Reports was published in 1602. It was originally published in Law French and entitled Le Tierce Part Des Reportes Del Edvvard Coke Lattourney general le Roigne, de Divers Resolutions & Judgements donnes avec graunde deliberaction, per les tresreurened Judges, & Sages dea la ley, de cases & matters en ley queux ne sueront vnques resolve ou adjudge par deuant, & les reasons & causes des dits resolutions & Judgements, durant les tresheureux regiment de tresillustre & renomes Royne Elzabeth, le fountaine de tout Justice & la vie de la ley. In English, The Third Part of the Reports of Sir Edward Coke, Knight., Her Majesty’s Attorney-General, of divers resolutions and Judgements given with great deliberation, by the most reverend Judges and Sages of the Law, of Cases and matters in law which were never Resolved or Adjudged Before: and the Reasons and Causes of the said resolutions and Judgments, during the most happy Reign of the most Illustrious and Renowned Queen Elizabeth, the Fountain of all Justice, and the life of the Law. The cases in this part continue to discuss issues of property, with an emphasis on cases of first impression resolving recent issues of statutory construction and the legal definitions of estates in land. There is a greater emphasis in these cases, though, of matters dealing with relations between husband and wife, as well as guardianship and inheritance. There are also more cases considering the nature of leaseholds and the problems of debtors and creditors.

(Preface) To the Reader.

How profitable and necessarie the Reports of the Judgements and Cases in Law published in former ages have beene, may unto the learned Reader by these two considerations amongst others evidently appeare. First, that the Kings of this Realme, that is to say, Edward the third, Henry the fourth, Henry the fifth, Henry the sixth, Edward the fourth, Richard the third, and Henry the seventh did select and appoint foure discreet and learned professors of Law, to report the judgements and opinions of the Reverend Judges, as well for resolving of such doubts and questions wherein there was (as in all other Arts and Sciences there often fall out) diversitie of opinions, as also for the true and genuine sense and construction of such Statutes and Actes of Parliament, as were from time to time made and enacted. To the end that all the Judges and Justices in all the severall parts of the Realme might as it were with one mouth in all mens cases pronounce one and the same sentence, whose learned workes are extant and digested into Nine severall volumes, wherein if you observe the unitie and consent of so many severall Judges and Courts in so many successions of ages, and the coherence and concordance of such infinite severall and divers cases, (one as it were with sweet consent and amitie proving and approving another) it may be questioned whether the matter be worthy of greater admiration or commendation: For as in nature we see the infinite distinction of things proceed from some unitie, as many flowers from one root, many rivers from one fountain, many arteries in the body of man from one heart, many veyns from one liver, and many sinewes from the braine: So without question, Lex orta est cum mente divina,1 and this admirable unitie Edition: current; Page: [60] and consent in such diversitie of things proceed from God the fountaine and founder of all good Lawes and constitutions. Secondly, in consideration of the sweet and delectable fruit that hath beene reaped by those workes for the due administration of justice, and the government of the Realme in peace and tranquilitie. Besides these there bee Reports fit for stronger capacities of equall authority, but of lesse perspicuity then the other, and these bee the judiciall records of the Kings Courts, wherein cases of importance and difficultie are upon great consultation and advisement adjudged and determined, in which Records the reasons or causes of the Judgements are not expressed; For wise and learned men doe before they judge, labour to reach to the depth of all the reasons of the case in question, but in their judgements expresse not any: And in troth, if Judges should set downe the reasons and causes of their judgements within every Record, that immense labour should withdraw them from the necessarie services of the Common-wealth, and their Records should grow to be like Elephantini libri2 of infinite length, and in mine opinion lose somewhat of their present authoritie and reverence; And this is also worthie for learned and grave men to imitate. But mine advise is, that whensoever a man is enforced to yeeld a reason of his opinion or judgement, that then hee set downe all authorities, presidents, reasons, arguments, and inferences whatsoever that may bee probably applied to the case in question; For some will be perswaded, or drawne by one, and some by another, according as the capacitie or understanding of the hearer or reader is. These Records for that they containe great and hidden treasure, are faithfully and safely kept (as they well deserve) in the Kings treasurie: And yet not so kept but that any Subject may for his necessary use and benefite have accesse thereunto, which was the auncient Law of England, and so is declared by an Act of Parliament in 46. Ed. 3. in these words “Item pria les Commons, quecomerecorde&quecunque; chose en la Court le Roy de reason devoient demurr’ illonques pur perpetual evidence, & eide de toutz parties a ycelly, & de touts ceux a queux ea nul maner ils atteignent, quant mestier lour fuit. Et ia de novell refusent en la court nostre dit Seign’ de serche ou evidence encounter le Roy ou disadvantage de luy; Que pleise ordeiner per estatute, que serche & exemplification soit faitz as toutz gentz, de queconque recorde que les touche en ascun maner’, auxybien de ce que chiet encounter le Roy come autres gentz. Le Roy le Edition: current; Page: [61] voet”:3 Right profitable also are the auncient bookes of the Common Lawes yet extant; as Glanvile, Bracton, Britton, Fleta, Ingham, and Novae narrationes, and those also of later times, as the Old Tenures, Olde Natura brevium, Littleton, Doctor and Student, Perkins, Fitzh. Natura brevium, and Stamford, of which the Register, Littleton, Fitzherbert, and Stamford are most necessarie and of greatest authoritie, and excellencie; And yet the other also are not without their fruit. In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of justice Fitzherbert, and Sir Robert Brooke, it will both illustrate the case, and delight the Readers; And yet neither that of Statham, nor that of the Booke of Assises istoberejected: And for pleading the great Booke of Entries is of singular use and utilitie. To the former Reports you may adde the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned; and the summarie and fruitfull observations of that famous and most reverend Judge and sage of the Law, Sir James Dyer Knight, late chiefe Justice of the Court of Common Pleas, and mine owne simple labours: Then have you 15. Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the Common Lawes; For I speake not of the Statutes and Actes of Parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part or branch of any Art or Science justly and truely, which hee professeth not, and impossible to make a just and true relation of any thing that he understands not; I pray thee beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error: For example, they say that William the Conquerour decreed that there should be Sheriffes in every Shire, and Justices of Peace to keepe the Countries in quiet, and to see offenders punished, whereas the learned know that Sheriffes were great officers and ministers of justice, as now they are, long before the Conquest, and Justices of Peace had not their being untill almost three hundred yeares after, viz. in the first yeare of Edward the third. But the module of a Preface will not suffer mee to enter into that matter, whereat my minde began to kindle: I will onely Edition: current; Page: [62] (to incite the studious Reader to the diligent observation of the Bookes, wherein bee hidden infinite treasure of knowledge,) note unto thee divers excellent things worthie thy observation out of the booke case in vicesimo sexto libro Assisarum placito 24.4 for a president for thee to follow in many other cases: There it appeareth, that in a Writ of Assise the Abbot of B. claimed to have Conusauns of plea, and writs of Assise, and other originall writs out of the Kings Courts by prescription time out of minde of man, in the times of Saint Edmund, and Saint Edward the Confessor, Kings of this Realme before the Conquest; and shewed divers allowances thereof, and that King Henry the first confirmed their usages, and that they should have conusance of Pleas, so that the Justices of the one Bench, or the other, should not intermeddle, out of which Record (being now above three hundred yeares past) it appeareth, that the predecessors of that Abbot had time out of minde of man in those Kings raignes (that is whereof no man then knew the contrarie, either out of his owne memorie, or by any Record, or other proofe) writs of Assise, and other originall writs out of the Kings Courts. Now albeit that the learned do know that originall writs are directed to the Sheriffe of the Countie where the land doth lie, yet it is not impertinent to set downe the forme of the writ of Assise for the better manifestation of divers things worthy of observation. Rex Vicecomiti salutem: Questus est nobis. A. quod B. iniuste & sine iudicio disseisiuit eum de libero tenemento suo in E. & c. Et ideo tibi praecipimus, quod si praedict. A. fecerit te securum de clamore suo prosequendo, tunc facias tenementum illud reseisire de catallis quae in ipso capt’ fuer’, & ipsum tenementum cum catallis esse in pace usque ad primam Assisam cum justiciarii nostri in partes illas venerint, & interim fac’xij, liberos & legales homines de vicineto illo vide-re tenementum illud. Et nomina eorum imbreviar’ &’c.5 And this forme of writ appeareth in Bracton lib.4. cap.16.and in Glanvile in his 13. Booke, who wrote not long after the Conquest: Out of which I gather foure things. 1. That time out of minde of man before the Conquest there had been Sheriffes, for the writ of Assise, Edition: current; Page: [63] and every other originall writ is directed to the Sheriffe, and cannot be directed to any other, unlesse it be in speciall cases to the Coroner, who then stands in the place of the Sheriffe. 2. That likewise by all that time there were trials by the oath of twelve men: for the words of the writ of Assise are, Et interim fac’. 12. liberos & legales homines &’c.6 3. That by like time there had beene writs of Affife and other originall writs retournable into the Kings Courts, which (seeing they be as Justice Fitzberbert saith in his preface to his booke of Natura brevium, the rules and principles of the science of the Common Law) doe manifestly prove, that the Common Law of England had beene time out of minde of man before the Conquest, and was not altered or changed by the Conquerour. 4. That by all that time there had beene a court of Chauncerie, for all originals doe issue out of that Court, and none other: And in our bookes it appeareth, that all those Mannors that were in the hands of Saint Edward the Confessor, are to this day called Auncient demesne; And that all King Edward the Confessors tenants in Assisis, Iuratis, seu recognitionibus poni non debent;7 which immunity and priviledge remaines to the tenants of those manors, to whose hands soever the same bee come, to this day; And this appeareth by the booke of Domes-day now remaining in the Eschequer, which was made in the raigne of Saint Edward the Confessor, as it appeareth in Fitzh. Nat. Breuiū fol. 16. So as without controveisie the triall by Juries, who ever were returned by Sheriffes, was before the Conquest. In the Booke of Domes-day you shall also reade, that Ecclesia sanca Mariae de Worcester habet Hundred’ voc’ Oswaldshaw, in qua iacent 300. hidae, de quibus Episcopus ipsius Ecclesiae a constitutione antiquorum temporum habet omnes Redditiones Socharum, & omnes consuetudines inibi pertinentes ad dominicum victum, & Regis servitium & suum: Ita ut nullus Vicecomes ullam ibi habere possit quaerelam, nec in aliquo placito, nec in aliqua qualibet causa,8 And it appeareth by the Charter it self, that King Edgar long before the Conquest, granted to the Church of Worcester the said franchises and hereditaments; whereby it is Edition: current; Page: [64] evident that then there were Sheriffes: And that the Sheriffes had then a Court and determined causes, held Pleas by plaint as to this day they doe, and that there were Redditiones Socharum,9 which prove Socage tenure, and Regis servitium10 knights service, then called Regis servitium, because it was done to or for the King, and the Realme: The same King granted the like Charter to the Monasterie of Saint Andrew, in Ely, viz. 2. hundreds within the Isle, and 5. and a halfe without, together with viewes of franke pledge, and by expresse words, that no Sheriffe should intermeddle within the same; But this much (if in a case so evident it be not too much) shall suffice. But if you will give any faith to them, let it be in those things they have published concerning the antiquitie, and honour of the Common Lawes: First, they say that Brutus the first king of this land, as soone as hee had settled himselfe in his kingdome, for the safe and peaceable government of his people wrote a book in the Greeke tongue, calling it the lawes of the Britans, and hee collected the same out of the Laws of the Trojans: This king, they say, died after the creation of the World, 2850. yeares, and before the Incarnation of Christ 1130. years, Samuel then being Judge of Israel. I will not examine these things in a Quo warranto,11 the ground thereof I thinke was best knowne to the Authors and writers of them; but that the Lawes of the auncient Britans, their contracts and other instruments: and the Records and judiciall proceedings of their Judges were written and sentenced in the Greeke tongue, it is plaine and evident by proofs luculent & uncontrolable: for the proofe whereof I shall be enforced onely to point out the heads of some few reasons, yet so as you may prosecute the same from the fountaines themselves at your good pleasure, and greater leasure. And first take a just testimonie out of the Commentaries of Julius Caesar, (whose relations are as true, as the stile and phrase is perfect.) Hee in his 6. Booke of the Warres of France faith, that in antient time the Nobilitie of France were all of two sorts, Druides or Equites; the one for matters of government at home, the other for martiall empolyments abroad: To the Druides appertained the ordering as well of matters Ecclesiasticall, as the admiration of the Lawes and government of the Common-wealth; for so he saith, De Edition: current; Page: [65] omnibus controversiis publicis privatisq; constituunt & c. & si quod est admissum facinus, si caedes facta, si de haereditate, de finibus controversia est, decernunt praemia, poenasq; constituunt.12 Concerning the mysteries of their Religion, they neither did, nor might commit them to writing, but for the dispatching and deciding of causes, as well publique as private saith hee, Graecis literis utuntur,13 they used to doe it in the Greeke tongue, to the end that their disciplines might not be made common among the vulgar: Now then this being granted that the Druides did customarily sentence causes, and order matters publike and private in the Greeke language, it will easily follow, that the very same was likewise used here in Brittanny, and the consequence is evident and necessarie, for that the whole society, and all the discipline of the Druides in France, was nothing else but a very Colony taken out from our British Druides, as Caesar himselfe in the same place affirmeth, from whence they learned and received all their discipline for managing of causes whatsoever. Disciplina Druidum (saith he) in Britannia reperta, atq; inde in Galliam translata: Et nunc qui diligentius illam disciplinam cognoscere volunt, in Britanniam discendi causa proficiscuntur.14 The very same witnesseth Plinie also Lib. 3. ca. I. towards the end. Nay their very name and appellation may serve for a proofe of the use of the Greeke tongue, they being called Drudes of δρῦς an Oake, because saith Plinie they frequent woods where oakes are, and in all their sacrifices use the leaves of those trees. Adde secondly to this, the daily commerce and trafique betwixt those Britans and French so much spoken of by Caesar, Strabo, and Pliny: And therefore no doubt but they used one and the same forme of covenanting by writing; which, that it was in Greeke, Strabo plainly affirmeth Lib.4. Geographiae, that the Massilienses a Greek Colonie, and as hystories report the chiefest merchants then in the world next the Phoenicians, so spread abroad the desire of learning their language, that even vulgarly, instancing therein the French Nation, they did τὰ συμβόλαια Ἑλληνιστὶ γράφειν,15 write saith hee their deeds and obligations in Greeke; Edition: current; Page: [66] And that there passed continuall traffique likewise betwixt these very Massiliens and the Britaines, Strabo in the same place directly affirmeth, in that saith he they vied to fetch tin from the British Islands to Massalia ἐκ τῶν Βρεταννικῶν νησῶν εἰς τὴν Μασσαλίαν κομίσεσθαι16 and for this it is that Juvenall who wrote above 1500. yeares past in his 15. Satyre saith, Gallia caussidicos docuit facūda Britannos:17 Not that the French men did teach the Lawyers of England to be eloquent, (which Caesar a most certaine Author denieth) but that a Colonel of Grecians residing in France as Strabo saith, Gallia was said to teach the Professors of the Lawes of England, being written in the Greeke tongue, Eloquence. Now for matters of Religion, Strabo in his 4. book observeth that the Britaines worshipped Ceres and Proserpina, and sacrificed unto them according to the Greeke forme of superstition as they did ἐν τῇ Σαμοθράκῃ,18 in Samos. Lastly, that as well the Grecians had trafique here, as that their language was not unknown to the auncient Britaines, the very names given unto this our Countrey doe declare and prove: For Bret (from whence our Writers as from an old British word derive the appellation of this Island and inhabitants, because the ancient Britaines were wont to paint their bodies, & in Juvenall are called Picti Britanni,19 which was said Caesar lib. 5. to make them seem fearfull in fight to their enemies) the same word in that very signification is Greek, and τὸ βρέτας20 in Aeschylus and Lycophoron signifies a picture: Now the other part of the word τανία21 it is in Greeke as much as Land or Countrey: I omit the name Albion, at the first Olbion, or the happy Island, in Greek, together with a great multitude of English words, as Chirographer, Prothonot. Ideote & c. yet tasting of a Greek beginning: For that hereby as I think it is sufficiently proved that the lawes of England are of much greater antiquity than they are reported to be, & than any the Constitutions or Lawes imperiall of Roman Emperors. Now therefore to return to our Chronologers, they further say that 441. yeares before the Incarnation of Christ, Mulmutius, of some called Dunvallo M. of some Dovebant, did write 2. Bookes of the Lawes of the Britons, the one called Stat. Municipalia, and Edition: current; Page: [67] the other Leges Judiciariae, for so the same doe signifie in the British tongue, wherein he wrote the same, which is as much to say as the Statute Law, & the Common Law: And 356. yeares before the birth of Christ, Mercia Proba Queen. & wife of King Gwintelin wrote a booke of the Lawes of England in the British tongue, calling it Merchenleg: King Alfred, or Alured King of the West Saxons, 871. years after Christ wrote a Book of the laws of England, and called the same, Breviarum quoddam qd’ composuit ex diversis legibus, Troianorum, Graecorum, Britannorum, Saxonum, & Dacorum:22 In the year after the incarnation of Christ 653. Sigabert or Sigesbert orientalium Anglorum Rex, wrote a Booke of the Lawes of England, calling it Legum instituta23 King Edward of that name before the Conquest the 3. Ex immensa Legum congerie, quas Brittanni, Romani, Angli, & Daci condiderunt, optima quaeq; selegit, ac in unam coegit, quam vocari voluit Legem communem:24 These and much more to like purpose shall you read in Gildas, Gervasius Tilburien. Galfrid. of Mont-mouth, Will’ of Malmsbury, Hoveden, Matthew of Westminster, Polidor Virgil’ of Harding, Caxton, Fabian, Baleus, & others: So as it appeareth by them, that before the Conquest there were amongst others 7. Volumes or bookes intituled, Leges Britannorum, Statuta Municipalia, Leges Judiciariae, Marchenleg, Breviariŭ legum, Legum Instituta, & Communes Lex. Cum insignis subactor. Angliae Rex Will’ ulteriores insulae fines suo subiagasset imperis, & rebelliũ mentes terribiliũ perdomuisset et exemplis, ne libera de caetero daretur erroris facultas, decrevit subiectum sibi populũ Juri scripto legibusq; subiicere: Propositis igitur Legibus Anglicanis secundum tripartitam eorum distinctionem, hoc est, Marchenleg, Daneleg, & West-Saxonleg, quasdam reprobavit, quasdam autĕ approbans transmarinas Newestriae leges, que ad regnipacem tuenda efficacissimae & videbantur adiecit.25 This saith Gervasius Tilburiensis, one that wrote in the Conquerors time, or shortly after him: Whereby if the same were admitted, it appeareth that some of the English Lawes hee allowed, and such of his owne as he added where efficacissimae ad Regni pacem tuendā,26 and therefore if such Edition: current; Page: [68] Lawes as he added of his owne had continued (as in troth they did not) they were not so shamelessely and falsly to be slandered, as some maliciously and ignorantly have done; of whom I onely say:

For thy satisfaction herein, heare what Sir Jo. Fortescue knight, chief Justice of England, a man of excellent learning and authority, wrote of this matter lib. I. cap. 17. speaking of the Lawes of England; Quae si optimae & non extitissent, aliqui Regum illorum justitia, ratione, seu affectione cōncitati eas mutassent, aut omnino delevissent, & maxime Romani qui legibus suis quasi totum orbis reliquum judicabant.28 After the Conquest, King Henry the first the Conquerors sonne, surnamed Beauclerke, a man excellently learned, because he abolished such customs of Normandy as his father added to our Common Lawes, is said to have restored the ancient lawes of England: King Henry the second wrote a book of the Common Lawes and statutes of England, [divided into two tomes,] and according to the same division, intituled the one pro Republica Leges,29 and the other Statuta Regalia,30 whereof not any fragment doth now remaine. And yet by the way I could but smile when I read in some of them, that when Cardinal Woolsey at the last perceived untrue surmises and fained complaints for the most part of such poore people as laded him with Petitions, he then waxed weary of hearing their causes, & ordained by the Kings Commission divers under Courts to heare complaints by Bill of poore people; The one was kept in the White hall, the other beforethe Kings Almoner Doctor Stokesly, a man that had more learning then discretion to be a Judge: the third was kept in the Lord Treasorers Chamber beside the Starre-chamber: and the fourth at the Rolles at the afternoone: These Courts were greatly haunted for a time, but at the last the people perceived that much delay was used in these Courts, & few matters ended, & when they were ended, they Edition: current; Page: [69] bound no man by the Law, then every man was weary of them, and resorted to the Common Law: but Tractent fabrilia fabri;31 and yet it were to be wished, that they had kept themselves within their proper element, for peradventure with wise men some of them have reaped the reward of those that are not beleeved when they say the troth. To the grave and learned writers of Histories my advice is, that they meddle not with any point or secret of any Art or science, especially with the lawes of this realm, before they conferre with some learned in that profession. And where it is reported that it was not lawfull for any common person to use any Seale toany Deed, Charter, or other Instrument in the raigne of Henry the second nor long after, And therefore Richard Lacie chief Justice of England in the raigne of Henry the second is said to have reprehended a common person for that he used a patent Seale, when as that pertained as he said to the King and Nobility only; Against which, Ingulphus Abbot of Croyland, who is said to have come in with the Conqueror, saith, Ante Normannorum ingresssum chirographa firma erant cum crucibus aureis, aliisque signaculis sed normannos cum cerea impressione uniuscuiusque; speciale sigillum sub intitulatione trium vel quatuor testium conficere chirographa instituere.32 By which it appeareth that in the Conquerors time every man might seale with a private seale. But letting these passe, and to beleeve neither till both of them be agreed, in troth it was ever unlawfull for a gentleman to usurpe the armes of seales of another; and to forge or counterfait the seale of any other was unlawfull for any. But otherwise it was never unlawful for any Subject to put his owne seale to any Instrument, as may appeare by infinite Presidents, amongst which for an instance I thought good here to remember one for all, which Master Joseph Holland of the Inner Temple a good Antiquary and a lover of learning delivered unto me, and beareth date Ann. 33. H. 2. and is sealed at this present with two faire ancient Seales, viz. of Walter of Fridaltorpe and Helias his sonne: and for that it containeth divers matters worthy observation, I thought good to exemplifie it to the Reader de verbo in verbum. Haec est concordia facta in Comitatu Eborum die Lunae proxime post festum Sancti Hillarii anno regni regis Henrici secundi tricesimo tertio, inter Edition: current; Page: [70] Walterum de Fridastorpe & Heliam filium eius, & inter Johannem de Beverlaco, scilicet de une carucata terrae in Fridastorpe, quam predict Joh. clamavit versas eos in eodem Comitatu sicut jus & haereditagium fuum per breve domini Regis, scil, quod praedict Walt & Helias filius eius dederunt, & reddiderunt praedict Joh. pro clameo & recto suo quod in ipsa terra habuit, unam dimid’ carucatam terrae in eadem villa, & unam tostum, scilicet illam dimid’ carucatam terrae quae iacet inter terram Galfrid’ Wanlin & inter praedict’ carucatam terrae quam clamavit, & illud tostum quod iacet inter terram Adae filie Norman’ de Sezevall, & terram Hen. fillii Thom. plenarie cum omnibus pertinentiis suis infra villam & extra, sine ullo retenemento; Hanc vero dimid’ carucatam terrae & tostam plenarie cum omnibus pertinentiis suit tenebit predict’ Joh. & haered’ sui de praedict’ Heliae heredibus suis: Reddendo inde annuatim praedict’ Heliae & haeredibus suis 12. d. ad terminum Pentecost, pro omnibus servitiis que ad terram illam pertinent: Et praedict’ Walterus & Helias & haered’ sui warrantizabūt praedict’ Jobanni & haeredibus suis praefat’ dimit’ carucatam terrae & tostum, cum omnibus pertinentiis contra omnes homines: Hanc vero concordiam ex utraque parte affidaverunt firmiter & fine dolo tenend’ ficut praesens chirographum testatur: & saepe dictus Walterus atturnavit praedict’ Johannem in eodem Comitat’ ad faciendum praedict’ servicium praedict’ Heliae filio suo, & haeredibus suis; His testibus Remigio Dapifero, Ranulpho de Glanuill’ tunc Vicecomite Eborum, Ranulpho filio Walteri, Rogero de Badnut, Warino de Rollesby, Alano de Sinderby, Radulpho filio Radulph. Will’ de Aton’, Nic. de Warham, Roberto de Mara, Alano filio Heliae, Roberto de Melsa, Thom. filio Jodlani, Walram, filio Will’ Waltero de Bomadnum, Alano Malebacke, Adamo de Killũ, Roberto de Malteby, Gilberto de Torini Willihelmo Agullũ, Gilberto filio Richardi, Willihelmo de Backestorpe, Helia Latimer; By which Writ the King commanded the Lord: on Quod sine dilatione plenum rectum teneat Johanni de Beverlaco de una caracata terrae cū pertinentiis in Fridastorpe quam clamat, & quam Walterus de Fridastorpe, & Helias filius eius ei deforc’, Et nisi fecerit Vicecomes Eborum faciat, ne amplius inde clamorem audiamas pro defectu recti.33 For thy better understanding, Edition: current; Page: [71] hereby it appeareth that Joh. de Beverlaco34 brought a Writ of Right against Walter of Fridastorpe, and Helias his sonne, of one Ploughland in Fridastorpe, directed to the Lord of the Mannour of whom the said plough landwasholden, which Writ was after by a Precept made by the Sherife called a Tolt, (because it doth tollere loquelam,35 from the Court Baron to the Countie Court) remooved into the Countie Court, where before Ranulph de Glanvilla then Sherife of Yorke, this concord was by consent of parties made in the County Court, by force of the Commission given to the Sherife in default of the Lord by the said Writ, (viz.) That the Sherife in his County Court should see that the demandant should without delay have his full right in the said plough land, upon which Writ in that court this Concord was made, and not onely entred into the Rols of the Countie Court, but by way of Instrument indented, mutually sealed by either partie; So as by this Concord the perclose of the writ, Ne amplius inde clamorem audiamus pro defectu recti,36 was satisfied: And to the end that this concord might be the more firmely kept, each partie bound him selfe to the other by an Affidavit. All this is necessarily collected out of Edition: current; Page: [72] this auncient & learned Instrument: for per breve Domini Regis37 is expounded to bee a Writ of Right by these words clamavit &c. ius suum;38 but directly after when it is said pro clameo & recto suo:39 Also it appeareth that this concord was made in comit’ Eborum,40 and clamaevit versus eos in eodem comit’ &c. per breve domini regis:41 And all this was done coram Ranulpho de Glanvilla tunc Vicec’:42 And the learned do know that a writ of Right cannot be retournable in the County court, but must of necessitie be remooved thither by Tolt. Good Reader, I dare confidently affirme unto thee, that never any Abbot, Monke, or Churchman that wrote any of our Annals could have understood this excellent and well indicted concord. But to returne againe to these grave and learned Reporters of the Lawes, in former times, who (as I take it) about the end of the raigne of King Henry the 7. ceased, betweene which and the cases reported in the raigne of Henry the 8. you may observe no small difference: So as about the end of the raigne of Henry the 7. it was thought by the Sages of the Law, that at that time the Reports of the Law were sufficient; Wherefore it may seeme both unnecessarie and unprofitable to have any more Reports of the Law: But the same causes that mooved the former, doe require also to have some more added unto them for two speciall ends and purposes. First, to explaine and expound those Statutes and Actes of Parliament which either have bin enacted since those Reports, or where not (no occasion falling out) in Reports expounded at all. Secondly, to reconcile doubts in former Reports rising either upon diversity of opinions or questions mooved and left undecided, for that it cannot be, but in so many Books written in so many severall ages, there must be (as the like in all Sciences and Arts both divine and humane falleth out) some diversitie of opinions, and many doubts left unresolved: For which only purposes I have published the former two, and this last part of my Reports, which I trust will be a meane (for so I intended them) to cause the studious to peruse and peruse againe with greater diligence, those former excellent and most fruitfull Reports: And in troth these of mine (if so I may call them, being the Judgements of others) are but in nature of Commentaries, Edition: current; Page: [73] either for the better apprehending of the true construction of certaine generall Acts of Parliament concerning the whole Realme, in certaine principall points never expounded before, or for the better understanding of the true sense and reason of the Judgements and resolutions formerly reported, or for resolution of such doubts as therein remain undecided. For which purposes in my former Reports I have reported and published for the explanation & exposition of the Statute of 23. H. 8. ca. 10. Porters case: Of the broad spreading Statute of 27. H. 8. cap. 10. of Uses, the cases of Chudleigh, Corbet, Shelley, Albany, and the Lord Cromwels case: of the Statute of 34. H. 8. cap. 20. of Recoveries, Wisemans case: Of the Statute of 13. Elizab. cap. 7. of Bankrupts, the case of Bankrupts: Of the Statute of 34. H. 8. ca. 21. of confirmation of LettersPatents, Dodingtons case: Of the statute of 31. H. 8. of dissolution of Monasteries: And of the Statute of 1. Edw. 6. of Chauntries, the Archbishop of Canterburies case: And of one Branch of the great & generall Statutes of 32. and 34. H. 8. of Wills, Binghams case. I have reported the Lord Buckhursts case, for the true understanding and expounding of the auncient and former Booke cases concerning Charters and Evidences, and to that end the residue of the cases in those two former parts are published. And seeing the end of these Lawes is to have Justice duely administred, and Justice distributed is Ius suum cuique tribuere,43 to give to every one his owne; Let all the professors of the Law, give to these Books that Justice which these Bookes have in them: that is, to give to every booke and case his owne true understanding: And not by wresting or racking, or inference of wit to draw them (no not for approving a troth) from their proper and naturall sense, for that were a point of great injustice: For troth and falshood are so opposite, as troth itselfe ought not to be prooved by any glose or application that the true sense will not beare. Out of all these Bookes and Reports of the Common Law, I have observed, that albeit sometime by actes of Parliament, and sometime by invention and wit of man, some points of the auncient Common Law have been altered or diverted from his due course; yet in revolution of time, the same (as a most skilfull and faithfull supporter of the common wealth) have bin with great applause for avoyding of many inconveniences restored againe: As for example, the wisedome of the Common Law was that all estates of inheritance should be Fee simple, so as one man might safely alien, demise, and contract, to and with another: But Edition: current; Page: [74] the Statute of Westminster the second cap. I. created an estate taile, and made a Perpetuitie by act of Parliament, restraining Tenant in taile from aliening or demising but onely for the life of Tenant in taile, which in processe of time brought in such troubles and inconneniences, that after two hundred yeares, necessitie found out a way by Law for a Tenant in taile to alien. Also by the auncient Common Lawes, freeholds should not passe from one to another but by matter of Record, or solemne Liverie of seisin; But against this were Uses invented, and grew common, and almost universall through the Realme, in destruction of the auncient Common Law in that point: But in time the manifold inconveniences hereof being by experience found, the Statute of 27. Henr. 8. cap. 10. was made for restoring of the auncient Common Law againe, as it expresly appeareth by the Preamble of that Statute: And hereof an infinite more of examples might bee added, but hereof this shall suffice: And thus much of the Bookes and Treatises, and of the Reporters and Reports of the Lawes of England. Now for the degrees of the Law: as there bee in the Universities of Cambridge and Oxford divers degrees, as generall Sophisters, Bachellors, Masters, Doctors, of whom bee chosen men for eminent and judiciall places, both in the Church and Ecclesiasticall Courts: So in the Profession of the Law, there are Mootmen, (which are those that argue Readers cases in houses of chauncerie, both in Termes and graund Vacations.) Of Mootemen after eight yeares Studie or thereabouts, are chosen Utterbaristers; of these are chosen Readers in Innes of Chauncerie: Of Utterbarristers, after they have beene of that degree twelve yeares at the least are chosen Benchers, or Auncients, of which one that is of the puisne sort, reades yearely in Summer vacation, and is called a single Reader; And one of the Auncients that have formerly read, reades in Lent vacation, and is called a double Reader, and commonly it is betweene his first and second Reading about nine or tenne yeares, And out of these the King makes choyse of his Attorney, and Sollicitor Generall, his Attorney of the Court of Wardes and Liveries, and Attorney of the Duchy: And of these Readers are Serjeants elected by the King, and are by the Kings Writ called ad statum & gradum Servientis ad Legem:44 and out of these the King electeth one, two, or three as pleaseth him to be his Serjeants, which are called the Kings Serjeants; Of Serjeants are by the King also constituted the honorable and reverend Judges, and Sages of Edition: current; Page: [75] the Law. For the young Student which most commonly commeth from one of the Universities, for his entrance or beginning were first instituted and erected eight houses of Chauncerie, to learne there the Elements of the Law: that is to say, Cliffordes Inne, Lyons Inne, Clements Inne, Barnards Inne, Staple Inne, Furnivals Inne, Davis Inne, and New Inne: And each of these houses consist of fortie or thereabouts. For the Readers, Utterbarristers, Mootemen, and inferiour Students, are foure famous and renowned Colledges, or Houses of Court, called the Inner Temple, to which the first three Houses of Chauncerie appertaine; Graies Inne, to which the next two belong; Lincolnes Inne, which enjoyeth the last two saving one; and the Middle Temple, which hath onely the last. Each of the Houses of Court consist of Readers above twentie: Of Utterbaristers above thrice so many: Of yong Gentlemen, about the number of eight or nine score, who there spend their time in Study of Law, and in commendable exercises fit for Gentlemen: The Jvdges of the Law and Serjeants being commonly above the number of twentie, are equally distinguished into two higher and more eminent Houses, called Serjeants Inne: All these are not farre distant one from another, and altogether doe make the most famous Universitie for profession of Law onely, or of any one humane Science, that is in the world, and advaunceth it selfe above all others, Quantum inter viburna Cupressus.45 In which Houses of Court and Chauncery, the Readings and other exercises of the Lawes therein continually used, are most excellent and behoovefull for attaining to the knowledge of these Lawes: And of these things this taste shall suffice, for they would require if they should be treated of, a treatise of it selfe. Of the antiquitie of these houses, and how they have beene changed from one place to another, I may say as one said of auncient Cities: Perpaucae antiquae & civitates Authores Suos norunt.46 Now, what Arts or Sciences are necessary for the knowledge & understanding of these Lawes, I say, that seeing these Lawes doe limit, bound and determine, of all other humane lawes, arts, and sciences: I cannot exclude the knowledge of any of them from the professor of these Lawes; the knowledge of any of them is necessary and profitable. But forasmuch as if a man should spend his whole life in the study of these Lawes, yet he might still adde somewhat to Edition: current; Page: [76] his understanding of them: Therefore the Judges of the law in matters of difficulty, doe use to conferre with the learned in that Art or Science, whose resolution is requisite to the true deciding of the case in question. Concerning the language or tongue wherein these Lawes are written, for all judiciall Records are entred and enrolled in the Latine tongue: As it appeareth by an Act of Parliament in Anno 36. cap. 15. and the words of Glanvile, Bracton, and Fleta, Novae & Narrationes, and the Booke of Entries, and divers of our statutes are set forth in the Latine tongue. Before the raigne of that famous King Edward the first, as well all Writs originall and judiciall, as all the bookes of the Law, as Glanvile, Bracton, & c. and all the Statutes yet extant were published in the Latine tongue; In the raigne of him and his sonne many Statutes areindited in the Latine: (as some also of the Statutes of Richard the second be.) And divers also bee enacted in French, for that they had divers territories and Seigniories that spake French within their dominion, and in respect thereof the better sort learned that language. But forasmuch as the former Reports of the Law, and the rest of the Authors of the Law, (the Doctor and Student who wrote in the English tongue excepted) are written in French; I have likewise published these in the same language: And the reason that the former Reports were in the French tongue, was for that they begun in the raigne of King Edward the third, who as the world knowes had lawfull right in the Kingdome of France, and had divers Provinces and territories thereof in prosession: It was not thought fit nor convenient, to publish either those, or any of the Statutes enacted in those dayes in the vulgar tongue, lest the unlearned by bare reading without right understanding might sucke out errors, and trusting to their owne conceit might endamage themselves, and sometimes fall into destruction. And it is verily thought that William the Conquerourfinding the excellencie and equitie of the Lawes of England, did transport some of them into Normandy, and taught the former Lawes written as they say in Greeke, Latine, British, and Saxon tongues (for the better use of Normans) in the Normane language, and the which are at this day (though in processe of time much altered) called the Customes of Normandie: So taught hee Englishmen the Norman tearmes of hunting, hawking, and in effect of all other playes and pastimes, which continue to this day: And yet no man maketh question but these recreations and disports were used with in this Realme before the Conquerours time. But see the Preface of William de Rouell of Allenson to his Commentary written in Latine upon the booke called, Le graund Custumier Edition: current; Page: [77] de Normandie,47 entituled in Latine, Descriptio Normanniae,48 where hee sheweth and proveth by other Authors, that most of the Customes of Normandie were derived out of the Lawes of England, in or before the time of the said King Edward the Confessor, from whom William Duke of Normandie did derive the title, by colour whereof he first entred into the crowne of England. If the language or stile doe not please thee, let the excellencie and importance of the matter delight and satisfie thee, and thereby thou shalt wholly addict thy selfe to the admirable sweetnesse of knowledge and understanding: In lectione non verba sed veritas est amanda, saepe autem reperitur simplicitas veridica, & falsitas composita, quae hominem suis erroribus allicit, & per linguae ornamentum laqueos dulcis aspergit: Et doctrina in multis est, quibus deest oratio.49 Certainely the faire outsides of enameled words and sentences, doe sometimes so bedazill the eye of the Readers minde with their glittering shew, as they cause them not to see or not to pierce into the inside of the matter; And he that busily hunteth after affected words, and followeth the strong sent of great swelling phrases, is many times (in winding of them in to shew a little verbal pride) at a dead losse of the matter it selfe, and so Projicit ampullas & sesquipedalia verba.50 To speake effectually, plainely, and shortly, it becometh the gravitie of this profession: And of these things this little taste shall suffice.

Your extraordinary allowance of my last Reports, being freshly accompanied with new desires, have overcome mee to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law, tending either to the true exposition of certaine generall Acts of Parliament, or to the true understanding and sense of our bookes, wherein there seemeth some diversitie of opinion: And albeit they bee few in number, yet many of them consist of divers severall points, and comprehend in them many other Judgements and Resolutions, which never before were reported. If by these labours Edition: current; Page: [78] the Common-wealth shall receive any good, and the Reader reape the benefit that for his reading and study he desireth, I shall have all the reward that for my writings and paines I require.

Heydon’s Case.

Ed.: This is a construction of leases, life estates, and statutes. Otlery, a religious college, gave a tenancy in a manor also called “Otlery” to Ware and his son. The tenancy was established by copyhold, an ancient device for giving a parcel of a manor to a tenant, usually in return for agricultural services, which was something like a long-running lease with special privileges for each party. Ware and his son held their copyhold to have for their lives, subject to the will of the lord and the custom particular to that manor. The Wares’ copyhold was in a parcel also occupied by some tenants at will. The college then leased the parcel to Heydon for a period of eighty years in return for rents equal to the traditional rent for the components of the parcel. The following year, the college was dissolved and lost its lands and rents to Henry VIII, although the act of dissolution kept in force grants made within the previous year for a term of life. The Court of Exchequer found that the grant to the Wares was within the statute’s protection but that the lease to Heydon was void. The ruling was based on an important discussion of the relationship of a statute to the pre-existing Common Law. By considering the statute as curing a defect in the Common Law, the remedy of the statute was limited to curing that defect. Judges are supposed to construe statutes by seeking the true intent of the makers of the Act, which is presumed to be pro bono publico, or intent for the public good. [The 1658 and some other editions have the name of the college and manor as “Ottery.”]

Edition: current; Page: [79]

In an information upon an intrusion in the Exchequer, against Heydon, for intruding into certain lands, &c. in the county of Devon: upon the general issue, the jurors gave a special verdict to this effect:

First, they found that parcel of the lands in the information were ancient copyholds of the manor of Otlery, whereof the warden and canons regular of the late college of Otlery were seised in the right of the said college; and that the warden and canons of the said college, 22 Hen. 7. at a court of the said manor, granted the same parcel by copy, to Ware the father and Ware the son, for their lives, at the will of the lord, according to the custom of the said manor; and that the rest of the land in the information was occupied by S. and G. at the will of the warden and canons of the said college for the time being, in the time of Henry the Eighth. And further that the said S. and G. so possessed, and the said Ware and Ware so seised as aforesaid, the said warden and canons by their deed indented, dated 12 January anno 30 Hen. 8. did lease the same to Heydon the defendant for eighty years, rendering certain rents severally for several parcels; and found that the said several rents in Heydon’s lease reserved, were the ancient and accustomed rents of the several parcels of the lands, and found, that after the said lease they did surrender their college, and all the possessions thereof to King Henry the eighth. And further found the statute of 31 Hen. 8. and the branch of it, scil. by which it is enacted, “That if any abbot, &c. or other religious and ecclesiastical house or |Edition: Sheppard2003; Page: [7 b] place, within one year next before the first day of this present Parliament, hath made, or hereafter shall make any lease or grant for life, or for term of years, of any manors, messuages, lands, &c. and in the which any estate or interest for life, year or years, at the time of the making of such grant or lease, then had his being or continuance, or hereafter shall have his being or continuance, and not determined at the making of such lease, &c. Or if the usual and old rents and farms accustomed to be yielden and reserved by the space of twenty years next before the first day of this present Parliament, is not, or be not, or hereafter shall not be thereupon reserved or yielded, &c. that all and every such lease, &c. shall be utterly void.” And further found, that the particular estates aforesaid were determined, and before the intrusion Heydon’s lease began; and that Heydon entered, &c. And the great doubt which was often debated at the Bar and Bench on this verdict, was, If copyhold estate of Ware and Ware for their lives, at the will of the Lords, according to the custom of the said manor, should, in judgment of law be called an estate and interest for lives, within the said general words and meaning of the said Act. Edition: current; Page: [80] And after all the Barons openly argued in Court in the same term, scil. Pasch. 26 Eliz. And it was unanimously resolved by Sir Roger Manwood, ChiefBaron, and the other Barons of the Exchequer, that the said lease made to Heydon of the said parcels, whereof Ware and Ware were seised for life by copy of court-roll, was void; for it was agreed by them, that the said copyhold estate was an estate for life, within the words and meaning of the said Act. And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial) restrictive or enlarging of the Common Law, four things are to be discerned and considered.

1. What was the Common Law before the the Act.

2. What was the mischief and defect for which the Common Law did not provide.

3. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

And 4. The true reason and remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo,1 and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.2 And it was said, that in this case the Common Law was, that religious and ecclesiastical |Edition: Sheppard2003; Page: [8 a] persons might have made leases for as many years as they pleased, the mischief was that when they perceived their houses would be dissolved, they made long and unreasonable leases: Now the stat of 31 Hen. 8. doth provide the remedy, and principally for such religious and ecclesiastical houses which should be dissolved after the Act (as the said college in our case was) that all leases of any land, whereof any estate or interest for life or years was then in being, should be void; and their reason was, that it was not necessary for them to make a new lease so long as a former had continuance; and therefore the intent of the Act was to avoid doubling of estates, and to have but one single estate in being at a time: For doubling of estates implies in itself deceit, and private respect, to prevent the intention of the Parliament. And if the copyhold estate for two lives, and the lease for eighty years shall Edition: current; Page: [81] stand together, here will be doubling of estates simul & semel,3 which will be against the true meaning of Parliament.

And in this case it was debated at large, in what cases the general words of Acts of Parliament shall extend to copyhold or customary estates, and in what not; and therefore this rule was taken and agreed by the whole Court, That when an Act of Parliament doth alter the service, tenure, interest of the land, or other thing, in prejudice of the lord, or of the custom of the manor, or in prejudice of the tenant, there the general words of such Act of Parliament shall not extend to copyholds: But when an Act of Parliament is generally made for the good of the weal public, and no prejudice can accrue by reason of alteration of any interest, service, tenure, or custom of the manor, there many times copyhold and customary estates are within the general purview of such Acts. And upon these grounds the Chief Baron put many cases, where he held, that the Statute of West. 2. De Donis Conditionalibus did not extend to copyholds; for if the statute alters the estate of the land, it will be also an alteration of the tenure, which would be prejudicial to the lord: for of necessity the donee in tail of land ought to hold of his donor, and do him such services (without special reservation) as his donor doth to his lord.

2. Littleton saith, lib. 1. cap. 9. That although some tenants by copy of court-roll have an estate of inheritance, yet they have it but at the will of the lord, according to the course of the Common Law. For it is said, that if the lord put them out, they have no other remedy but to sue to their lord by petition; and so the intent of the Statute de Donis Conditionalibus was not to extend (in prejudice of lords) to such base estates, which as the law was then taken, was but at |Edition: Sheppard2003; Page: [8 b] the will of the lord. And the statute saith, Quod voluntas donatoris in carta doni sui manifeste express. de caetero observetur:4 so that which shall be entailed, ought to be such an hereditament, which is given, or at least might be given by deed or charter in tail.

3. For as much as great part of the land within the realm, is in grant by copy, it will be a thing inconvenient, and occasion great suit and contention, that copyholds should be entailed, and yet neither fine nor common recovery Edition: current; Page: [82] bar them; so as he who hath such estate cannot (without the assent of the lord by committing a forfeiture, and taking a new estate) of himself dispose of it, either for payment of his debts, or advancement of his wife, or his younger children; wherefore he conceived that the Statute de Donis Conditionalibus did not extend to copyholds, quod fuit concessum per totam Curiam.5 But it was said that the statute, without special custom, doth not extend to copyholds; but if the custom of the manor doth warrant such estates, and a remainder hath been limited over and enjoyed, or plaints in the nature of a formedon6 in the descender brought in the court of the manor, and land so entailed by copy recovered thereby, then the custom co-operating with the statute makes it an estate-tail; so that neither the statute without the custom, nor the custom without the statute, can create an estate-tail.

And to this purpose is Littleton, lib. 1. c. 8. for he saith, That if a man seised of a manor, within which manor there hath been a custom which hath been used time out of memory, that certain tenants within the same manor have used to have lands and tenements, to hold to them and their heirs in fee-simple or fee-tail, or for term of life, &c. at the will of the lord, according to the custom of the same manor; and a little after, That Formedon indescender lies of such tenements, which writ, as it was said, was not at the Common Law.

To which it was answered by the chief Baron, that if the statute (without custom) shall not extend to copyholds, without question the custom of the manor cannot make it extend to them: for before the statute, all estates of inheritance, as Littleton saith, lib. i. cap. 2., were fee-simple, and after the statute no custom can begin, because the statute being made in 13 Edw. 1. is made within time of memory; ergo the estate tail cannot be created by custom; and therefore, Littleton is to be intended (inasmuch as he grounds his opinion upon the custom, that copyholds may be granted in fee-simple, or fee-tail) of a fee-simple conditional at the Common Law: for Littleton well knew, that no custom |Edition: Sheppard2003; Page: [9 a] could commence after the statute of West. 2., as appears in his own book, lib. 2. c. 10. and 34 H. 6. 36. And where he saith, that formedon in descender lies, he also saith, that it lies at the Common Law. And it appears in our books, that, in special cases, a Formedon in the descender lay at the Edition: current; Page: [83] Common Law, before the statute of Westm. 2., which see 4 Edw. 2. Formedon 50. 10 Edw. 2. Formedon 55. 21 Edw. 3. 47. Plowd. Com. 246b. &c.

And where it was further objected, That the statute of West. 2. cannot without custom make an estate tail of copyholds, because without custom, such estate cannot be granted by copy; for it was said, That estates had been always granted to one and his heirs by copy, that a grant to one and the heirs of his body, is another estate not warranted by the custom: So that in such manors, where such estates of inheritance have been allowed by custom, the statute doth extend to them, and makes them, which before were fee conditional, now by the statute estates in tail, and that the statute cannot, as hath been agreed before, alter the custom, or create a new estate not warranted by the custom.

To that it was answered by the chief Baron, That where the custom of the manor is to grant lands by copy in feodo simplici7 (as the usual pleading is) without question, by the same custom lands may be granted to one and the heirs of his body, or upon any other limitation or condition; for these are estates in fee-simple, et eo potius,8 that they are not so large and ample as the general and absolute fee-simple is, and therefore the generality of the custom doth include them, but not e converso;9ad quod non fuit responsum.10 But it was agreed by the whole Court, That another Act made atthe sameParliament, cap. 18. which gave the elegit11 doth not extend to copyholds, for that would be prejudicial to the lord, and against the custom of the manor, that a stranger should have interest in the land held of him by copy, where by the custom it cannot be transferred to any without a surrender made to him, and by the lord allowed and admitted. But it was agreed by them, that other statutes made at the same Parliament, which are beneficial for the copyholder, and not prejudicial to the lord, may be, by a favourable interpretation, extended to copyholds, as cap. 3. which gives the wife a cui in vita,12 and receipt, and Edition: current; Page: [84] cap. 4. which gives the particular tenant a quod ei deforceat;13 and therewith agrees 10 Edw. 4. 2b.

And in this case it was also resolved, That although it was not found that the said rents were the usual rents, accustomed to be reserved within 20 years before the Parliament; yet inasmuch as they have found, that the accustomable rent was reserved, and a custom goes at all times before, for this cause it shall be intended, that it was the accustomable rent within the 20 years, and so it shall be intended, if the contrary benot shewed of the otherside. Andjudgment was entered for the Queen.

Fermor’s Case.

(Fermor v. Smith) (1602) Hilary Term, 44 Elizabeth I

In the Court of Chancery, and before all the justices of England. First Published in the Reports, volume 3, page 77a.

Ed.: Richard Fermor leased a messuage, or house and its related buildings and land, to Thomas Smith. The lease was based on a demise, or grant, for a period of 21 years, in return for rents of £3 yearly. Smith held other lands from Fermor as a tenant at will, which means the leases in these lands could be ended any time by Fermor or Smith, for 20s yearly, and he held a copyhold for more lands from Smith for 40s. Smith also held some lands not subject to Fermor. Smith granted all of his lands in the area to Chappell for life, and Smith levied a fine and proclamations, or instituted a proceeding to cut short other interests rather like a modern proceeding to declare an interest by adverse possession, which would cut off Fermor’s interests in Fermor’s lands possessed by Smith. Smith continued paying all of his rents to Fermor. The five years for the fine to be completed ran. Chappell died, which meant the reversion Smith kept when he gave Chappell the life estate gave possession back to Smith. The 21-year lease expired, and Smith claimed all of the land and barred Fermor from possession. Fermor sued in Chancery, although Egerton the chancellor referred it to Edition: current; Page: [85] the whole bench. The court held that the Parliamentary act that established the use of fines had not been intended for use in such a fraudulent manner. Benefits acquired by fraud cannot bind the people defrauded, particularly when there is a relationship of trust and confidence between the persons defrauding and defrauded. To allow any other result would allow “general mischief to insue.” Fermor won.

This case presents good discussions of statutory interpretation based on legislative intent, of fraud and fraud in a position of trust (which Coke seems to have over-emphasized compared to other reporters of the case), and of public policy arguments based on the effect of the ruling on subsequent litigants.

In a case depending in Chancery, between Richard Fermor, Esq. plaintiff, and Thomas Smith defendant, on the hearing the cause before Sir Thomas Egerton, Knight, Lord Keeper of the Great Seal, the case was such; Richard Fermor, the plaintiff, being seised of the manor of Somerton in fee, by indenture 6 Junii 20 Eliz. demised a messuage, parcel of the same manor, to Thomas Smith, the defendant, for twenty-one years, rendering the yearly rent of three pounds during the term, by force of which the defendant entered and was thereof possessed; He was also possessed of divers other parcels of the said manor at the will of the plaintiff, rendering twenty shillings per annum, and held divers other parcels of the said manor by copy of court-roll according to the custom of the said manor, rendering forty shillings rent per annum, all which lay in Somerton: And the said Thomas Smith was seised in his demesne as of fee of divers lands, in the same town, which were his proper inheritance. And afterwards by his deed 15th of October 25 Eliz. demised the said house and all the said land which he held for years, at will, and by copy, to one Chappel for his life, Pasch. 35 Eliz. Smith levied a fine with proclamations of as many messuages and lands, as comprehended as well all the lands which he held for years, at Will, and by copy, as his own inheritance, by covin1 and practice, to bar the plaintiff of his inheritance; the proclamations and five years passed, Smith at all times, before and after the fine, continued in possession, and paid the said several rents to the plaintiff. Chappel died, the 21 years Edition: current; Page: [86] expired, |Edition: Sheppard2003; Page: [77 b] and now Smith claimed the inheritance of the land which he held by lease, at will, and by copy, and would have barred the plaintiff by force of the said fine with the proclamations, and five years past. And the Lord Keeper of the Great Seal thinking and considering of the great mischiefs which might ensue by such practices, and on the other side considering that fines with proclamations are the general assurances of the realm, referred this case (being a thing of great importance and consequence) to the consideration of the two Chief Justices Popham and Anderson; and after conference between them, they thought it necessary that all the justices of England and Barons of the Exchequer should be assembled for the resolution of this great case. And accordingly in this same term, all the Judges of England and the Barons of the Exchequer met at Serjeant’s Inn in Fleet-street, at two several days, where the case was debated among them. And at length it was resolved, by the two Chief Justices, Popham and Anderson, and by Gawdy and Walmesly, and all the other justices of England and Barons of the Exchequer, (except two) that the plaintiff was not barred by the said fine with proclamations, and that for four causes:

1. The makers of the Act of 4 Hen. 7. cap. 24. did never intend that such fine levied by fraud and practice of lessee for years, tenant at will, or tenant by copy of Court roll, who pretend no title to the inheritance, but intend the disinherison of their lessors or Lords, should bar them of their inheritance, and that appears by the preamble of the Act of 4 Hen. 7. where it is said, “That fines ought to be of greatest strength to avoid strifes and debates, & c.” But when lessee for years, or at will, or tenant by copy of Court roll make a feoffment by assent and covin that fine shall be levied, the same is not to avoid strife and debate; but by assent and covin to begin strife and debate where none was; And therefore the Act doth not extend to establish any estate made by such fraud and practice.

2. It was never the intent of the makers of the Act, that those who could not levy a fine, shall by making of an estate by wrong and fraud be enabled by force of the said Act to bar those who had right by levying of a fine: For if they themselves without such fraudulent estate cannot levy a fine to bar them which have the freehold and inheritance, certainly the makers of the Act did not intend that by making of an estate by fraud and practice they should have power to bar them; and such fraudulent estate is as no estate in the judgement of Law.

3. As it is said in Dalamer’s Case in Plow. Comm. 352. if any doubt be Edition: current; Page: [87] conceived upon the words or meaning of |Edition: Sheppard2003; Page: [78 a] an Act of Parliament it is good to construe the same according to the reason of the Common Law; but the Common Law doth so abhorre fraud and covin, that all Acts as well Judicial as others, and which of themselves are just and lawful, yet being mixt with fraud and deceit, are in judgement of Law wrongful and unlawful: Quod alias bonum & justum est, si per vim vel fraudem petatur, malum & injustumefficitur:2 And therefore if a woman hath title to Dower which is one of the things favoured in Law, and by covin between her & another causeth a stranger to disseise the tenant of the land, to the intent that she may bring a Writ of Dower against him, which is done accordingly, and the woman recover against him upon a just and good title, yet all the same is void and of no force to binde the Terre-tenant; a fortiori3 in the principal Case when the lessee for years maketh a feoffment by covin, which amounteth to a wrong and disseisin, a fine levied by him who is particeps criminis,4 and who had not, nor pretended any right to the land shall not be a barre to the lessor. And that recoveries in Dower, or any other real Action shall be made a good title against the Tenant who cometh to the land by wrong and covin are void and of no force appeareth by 41 Ass. 28. 44 Edw. 3. 25 Ass. 1. 22 Ass. 92. 11 Edw. 4. 15 Edw. 4. 4. 7 Hen. 7. 11. 18 Hen. 8. 5. 12 Eliz. Dyer 295. For although that his right be lawful, and that he hath pursued his Recovery by judgement in the King’s Court, yet his covin maketh all that unlawful and wrongful, andyet Recoveries and chiefly upon good title are much favoured in Law: Also the right of inheritance of feme coverts,5 and infants, are much favoured in Law; and yet if a feme covert or an infant be of covin and consent, that the discontinuee shall be disseised, and that the disseisor shall enfeoff them, and all this is done accordingly, they are not remitted, as appears by Littleton, chap. Remitter 151. & 19 Hen. 8. 12b. And there it is held by six justices, that in such case, if the disseisor enters by covin to the intent to enfeoff the infant, although the infant be not of covin, &c. yet he shall not be remitted, because he who is in by him who makes the covin shall be in the same plight as he who did the covinous act. And it is agreed in 19 Hen. 8. 12. b. that if a man makes a disseisin to the Edition: current; Page: [88] intent to make a feoffment with warranty, although he makes the feoffment twenty months after, yet it is a warranty which commences by disseisin.

So if one makes a gift in tail to another, and the uncle of the donor disseises the donee, and makes a feoffment with warranty, the uncle dies, and the warranty descends on the donor, and afterwards the donee dies without issue, the donor brings Formedon6 in the reverter, and the tenant pleads the feoffment with warranty, the demandant shall |Edition: Sheppard2003; Page: [78 b] avoid it, because it began by disseisin, and yet the disseisin was not immediately done to the donor, but to the donee; but by it his reversion was devested; and yet warranties are much favoured in law. And it appears in 8 Eliz. 249. Dyer, that a vacat7 was made of a recovery in the Common Pleas had by covin. The law hath ordained, that he, who will be assured of his goods, shall buy them in open Market, and that sale will bind all strangers, as well as the seller, and yet it is agreed in 33 Hen. 6. 5a, 5b that a sale in Market overt shall not bind him who hath a right to the goods, if the sale be by fraud, or the vendee hath notice that the property of the goods was another’s. So the law hath ordained the Court of Common Pleas as an open Market for assurances of land by fine, so that he who will be assured of his land not only against the seller, but all strangers, it is good for him to pass it in this market overt by fine; for, as it is said, finis finem litibus imponit:8 and yet covin and deceit in the case at Bar will void it. In 4 Edw. 2. Cui in Vita 22. it is held, That a resignation made by an abbot by covin should not abate the writ. 34 Edw. 1. Warranty 88. & 19 Edw. 2. Assets 3. & 31 Edw. 1. Voucher 301., a covinous conveyance that assets should not descend, is nothing worth. And it appears in 17 Edw. 3. 59. and 21 Edw. 3. 3. 46. that an estate made to the King, and by his letters patent granted over, and all this by covin between him who granted to the King and the patentee, to make an evasion out of the Statute of Mortmain, shall not bind, but shall be repealed. And 17 Eliz. Dy. 339. a presentation obtained by collusion is void. And 17 Eliz. Dy. 339. letters of administration obtained by collusion are void, and shall not repeal a former administration: see 13 Eliz. Dyer 295. many cases there put concerning covin.

Edition: current; Page: [89]

And thereupon it was concluded, That if a recovery in Dower, or other real action, if a remitter to a feme covert or an infant, if a warranty, if a sale in market overt, if the King’s Letters Patent, if a presentation, administration, &c. scil. acts temporal and Ecclesiastical, shall be avoided by covin; by the same reason a fine in the principal case levied by fraud and covin, as is aforesaid, shall not bind; for fraus & dolus nemini patrocinari debent.9

Note, Reader, in 33 & 34 Eliz. in the King’s Bench between Robert Laune plaintiff and William Toker defendant in Ejectione firmae10 of lands in Ilfordcoom in the county of Devon, it was adjudged that where tenant for life levied a fine with proclamation and five years pass in his life, that the lessor should have five years to make his claim after the death of the lessee. And although this statute of 4 Hen. 7. hath a saving for the lessor in such case, yet the saving is of such right “as first shall grow, remain, &c.” and the right first accrued to the |Edition: Sheppard2003; Page: [79 a] lessor after the fine and the forfeiture; but notwithstanding that, in as much as by the covin of the lessee, he in reversion or remainder might be barred of his reversion or remainder (for they do not expect to enter till after the death of the lessee,) and especially when the lessee hath lands of his own inheritance in the same town (as in the case at Bar he had), there the lessor shall have 5 years after the death of the lessee.

So it was agreed in the same case, if tenant for life makes a feoffment in fee to one who hath lands in the same town, and the feoffee levies a fine with proclamations; it shall not bind the lessor, but he shall have 5 years after the death of the lessee, for the lessor cannot know of what land the fine is levied, for he is not party to the indenture or agreement between the conusor and conusee;11 So in the same case, the Judges made a construction against the letter of the statute in salvation of the estate and inheritance of him in the reversion. And so it hath been adjudged before in Some’s Case in the Common Pleas, in Sir James Dyer’s time, as Plowden told me. Also it was said, that if lessee for years makes a feoffment in fee by practice and covin, that the feoffee should levy a fine with proclamations to another (the feoffee having other Edition: current; Page: [90] lands in the same Town) and all this is done accordingly; and yet the lessee doth continually pay the rent to the lessor, it shall not bind the lessor, for the reasons aforesaid.

Lastly, the Judges in this Resolution did greatly respect the general mischief which would ensue, if such fines levied by practice and covin of those who had the particular interests, should bar those who had the inheritance, and especially in the case at Bar, when after the fine levied, the conusor continually payed the rent to the lessor, which made the fraud and practice apparent, and therefore the lessor was secure, and had no cause of any fear or doubt of such fraud. But it was resolved, that if A. purchases land of B. by feoffment, or bargain and sale, and enrols it, and afterwards perceiving that B. had but a defeasible title, and that C. had right to it, B. levies a fine with proclamations to a stranger, or takes a fine from another with proclamations, to the intent to bar the right of C., this fine so levied by consent should bind; for nothing was done in this case which was not lawful, and the intent of the makers of the Act of 4 Hen. 7. was to avoid strifes and debates, and by the expresspurview should bind all strangers who do not pursue their right by action, or entry within 5 years. So, if one pretending title to land enters, and disseises another, and afterwards with intent to bind the disseisee, levies a fine with proclamations, this fine shall bind the disseisee by the express purview of the Act, if he neither enters nor |Edition: Sheppard2003; Page: [79 b] pursues his action within 5 years; and this cannot be called levying by covin, because the levying of the fine is lawful, and the disseisee may re-enter, or bring his action within the 5 years.

The fourth reason was, because the lessee had contrived his fraud and deceit in so secret a manner, that he had deprived the lessor of the remedy which the statute gave him, that is to say, to make his entry, or bring his action within the 5 years: For how could he make his entry, or bring his action, when he knew not of the feoffment which did the wrong? And as to the fine, inasmuch as the lessee had lands in fee-simple in the same town, every one will presume that the fine would be levied of that whereof it might be lawfully levied. And although it contained more acres than his own land, that is usual almost in all fines; and peradventure the lessor did not know the just quantity of the lessee’s proper land, for that doth not appertain to him; and therefore it would be unreasonable to give him benefit, in this case, of the non-claim of the lessor, when the wrong and covin of the lessee is the cause of his non-claim. And a man shall not take advantage of his own wrong or covin. The possession of Edition: current; Page: [91] the lessee is not any mean for the lessor to take any notice of this wrong, for he comes to the possession of the land by grant or demise lawfully; and after the feoffment he continues in the possession as a lessee, for he pays his rent as a lessee ought; immo12 the possession of the lessee, and the payment of the rent, was the cause that the lessor neither knew nor suspected the fraud.

Also it was said, that the fraud and covin in this case made it more odious, because between the lessor and lessee, and the lord and his copyholder, there is a trust and confidence, and therefore a lessee for years and a copyholder shall do fealty, which is a great obligation of trust and confidence; and fraud and deceit by him who is trusted, is most odious in law. And if the makers of this Act had been asked, if their intent was, that such a fine so levied by such practice and covin should bind the lessors, they would have answered, God forbid that they should intend to patronize any such iniquity practised and compassed by those in whom there was trust and confidence reposed. But when a disseisor (although he gains the possession by wrong) levies a fine with proclamation, yet it shall bind as is aforesaid, for a disseisor venit tanquam in arena,13 and it is not possible but that the disseisee to whom the wrong is done, and who hath lost his possession, should be conusant of it; and therefore it will be his own folly, if he makes not his claim; and it is not accompanied with fraud and practice by one who came to the possession lawfully, by grant or demise, and who had a trust reposed in him by his lessor or grantor, which fraud and practice is so secretly contrived, that the |Edition: Sheppard2003; Page: [80 a] lessor by common presumption could not have notice to make his claim, because his lessee continued in possession, and paid his rent, as a lessee ought. And as to that which was objected, That it would be mischievous to avoid fines on such bare averments; It was answered, That it would be a greater mischief, and principally in these days (in which the Poet saith,

if fines levied by such covin and practice should bind, And such Objection may be made, if a fine be levied to secret uses to deceive a purchaser, an averment of fraud may be taken against it, by the stat. of 27 Eliz. cap. 4. So if a fine be levied on an usurious contract, it may be avoided by averment, by the statute of 13 Eliz. cap. 8. And Sir Thomas Egerton Lord Keeper of the Great Seal, commended this resolution of the justices, and agreed in opinion with them.

Edition: current; Page: [93]

Part Four of the Reports

The Fourth Part of Coke’s Reports was published in 1602. It was originally published in Law French and entitled Le quart part des reportes del Edward Coke chivalier, l’attorney general le roy: de divers resolutions & judgements dones sur solemnes arguments, & avec graund deliberation & conference des tresreverend judges & sages de la ley de cases difficult, en queux sont graund diversities des opinions, et queux ne fueront unques resolves, ou adjudges, & reporte par devant, et les raisons & causes des dits resolutions & judgements: publies en le primier an (le printemps de tout heureusite) de tresheureux regiment de treshault et tresillustre Jaques roy Dengleterre, Fraunce, & Ireland, & de Escoce le 37., le fountaine de tout pietie & justice, & la vie de la ley. In English, The Fourth Part of the Reports of Sir Edward Coke, Knight, the King’s Majesty’s Attorney-General, of divers Resolutions and Judgments given upon solemn Arguments, and with great Deliberation and Conference of the most reverend Judges and Sages of the Law, of Cases difficult, in which are great diversities of opinions, and which were never Resolved or Adjudged, or Reported before: and the Reasons and Causes of the said Resolutions and Judgements. Published in the first yeare (the springtime of all happiness) of the most happie and prosperous Raigne of the Most High and Most Illustrious James, king of England, France, and Ireland, and of Scotland the 37. the Fountaine of all piety and Justice and the Life of the Law.

The cases in this part present issues that range further afield from property law than do the first three volumes. Although there are cases on the rights of husbands and wives over property, and on debt collection and many on copyholds (which are akin to modern leases), this part moves into the domains now known as tort law, contract law, criminal law, and civil and appellate procedure.

(Preface) To the Reader.

There is nothing that can bee said or written of Lawes, although the field bee large, and the common place thereof may seeme to be infinite, but in mine opinion may bee reduced to one of these sixe heades; Making, Correcting, Digesting, Expounding, Learning, and Observing. Of Lawes, concerning Making of new, sixe things amongst many other doe principally fall into consideration. First, under what forme of Common wealth the Lawmakers be governed; For one consideration is requisite where the government is Monarchicall, another when it is Artistocraticall, and a third where it is Democraticall. Secondly, to know the several kinds of the Muncicipall Lawes of his owne proper Nation: For the innovation or chaunge of some Laws is most dangerous, and lesse perill in the alteration of others. Thirdly, to understand what the true sence and sentence of the Lawes then standing is and how farre forth former Lawes have made provision in the case that falleth into question. Fourthly, by experience to apprehend what have beene the causes of the danger or hinderance that hath fallen out in that particular to the Common wealth, either in respect of time, place, persons or otherwise. Fifthly, to foresee that a proportionall remedy be applied so, as that for curing of some defects past, there bee not a stirring of more dangerous effects in future. Sixtly, the mean, Edition: current; Page: [95] & that only is by authority of the high (that in troth is the highest) Court of Parliament. Concerning the Correction of olde, the same respectes are to be observed, that have been said touching the Making of new. For Digesting of former Laws into Methode and order, three things are requisite: Judgement to know them, Art to dispose them, and Diligence to omit none of them. The Expounding of Lawes doth ordinarily belong to the reverend Judges, and Sages of the realme: And in cases of greatest difficulty and importance to the high court of parliament: Concerning Learning & attaining to the knowledge of these Lawes, I have in the Preface of my first Edition somewhat touched. The observing of Lawes doth concerne all whatsoever; but principally some in particuler, as hereafter shalbe touched, For Summa sequar fastigia rerum.1 Our kingdome is a Monarchie Sucessive2 by inherent birth-right, of all others the most absolute and perfect forme of government, excluding Interregnum,3 and with it infinite inconveniences; The Maxime of the Common Law being, That the king of England never dyeth, which is true in respect of the ever during, and never dying politique capacity. The Lawes of England consist of three parts, The Common Law, Customes, & acts of parliament: For any fundamental point of the ancient Common Lawes and customes of the realme, it is a Maxime in policie, and a triall by experience, that the alteration of any of them is most dangerous; for that which hath beene refined and perfected by all the wisest men in former succession of ages and proved and approved by continuall experience to be good & profitable for the common wealth, cannot without great hazard and danger be altered or chaunged. Infinite were the scruples, suites, and inconveniences that the Statute of 13. Edw. 1. de Donis conditionalibus4 did introduce, which intended to give every man power to create a new found estate in taile, & to establish a perpetuitie of his landes, so as the same should not be aliened nor letten, but only during the life of tenant in taile, against a fundamentall rule of the Common Law; That all estates of inheritance were fee simple, wherupon these inconvenienciesinsued, purchases defeated, leases evicted, other estates and graunts made upon just and good consideration were avoided, creditors defrauded of the just & due Edition: current; Page: [96] debts, Offendors imboldned to commit capital offences, and many other inconveniences followed: Also, what suits and troubles arose by the Statute of cap. 34. Edw. 3. of Nonclaime,5 enacted against a main point of the Common Law, whereby insued the universall trouble of the Kings subjects, as it was resolved in Parliament in 4.Hen. 7. cap.24. is apparant to all of least understanding: What intricate and subtile questions in lawe dayly arose upon the validity and construction of willes of lands, which by the rule of law were not devisable before the statuts of 32. and 34.Hen. 8. of Wils, dayly experience to the ruine of many, and hinderance of multitudes manifestly teacheth. But above all, certaine late inventions and devises in assurances of lands by limitation of uses, under upstart and wild provisoes and limitations, such as the Common Law never knew, doe breed and multiplie infinite troubles, questions, suits, and difficulties: In the Parliament holden in the 20. yeare of King Henry the third, it was mooved that Children borne before mariage (being Bastards by the Common Lawes of this Realme, the wisedome of the Law abhorring clandestine contracts) might be legitimate according to the Civill or Ecclesiasticall lawes, whereunto saith the Statut, Omnes Comites & Barones una voce responderunt, Nolumus leges Anglia mutare quae hucusque usitatae sunt & approbatae:6 In which few words is observable; First, the absolute monaccord and unity, una voce, of all the Peeres and Lords of Parliament: Secondly the deniall, Nolumus leges Anglie,7 not of Normandy, or of any other Nation, as is fondly dreamed, as elsewhere I have shewed, but the common Law of England: And thirdly, the reason of their deniall: Quaehactenus usitate sunt & approbate,8 as if they should have said, we will not change the Lawes of England, for that they have been anciently used and approved from time to time by men of most singular wisdome, understanding, and experience. I will not recite the sharpe Law of the Locrenses9 in magna Graecia, concerning those that sought innovation in preferring any new Law to be made, you may read it in the glosse of the first booke of Justinians Institutes, because it is too sharpe & tart for this age: But take we the reason of that Law, Quia leges figendi Edition: current; Page: [97] & refigendi consuetudo est perniciosa.10 But Platoes Law I will recite touching this matter, which you may read in his sixt booke de Legibus; If any Citizen doe invent any new thing, which never before was read or heard of, the Inventor thereof, shall first practise the same for the space of tenne yeeres in his owne house, before it be brought into the Common wealth, or published to the people, to the end that if the invention be good, it shall be profitable to the Inventor, and if it were nought, he himselfe and not the Common wealth might taste of the prejudice. And I like well the Edict reported by Suetonius; Quae praeter consuetudinem & morem maiorum fiunt, neque placent, nec recta videntur,11 And I would the commandement of Honorius and Arcadius were of us Englishmen observed, Mos fidelissimae vetustatis retinendus est:12 And I agree and conclud this point with the Apotheg[m] of Pereander of Corinth, That old Lawes and new meats are fittest for us. As concerning the correcting of the Common Lawes or antient Customes of England, may be applyed all that hath been said concerning making of Lawes: only this adde; That it hath bin an old rule in Policy and Law, that Correctio Legum est euitanda.13 And yet concerning certaine of our penall statutes, to repeale many that time hath antiquated as unprofitable, and remaine but as snares to intangle the subjects withall; And to omit all those that be repealed, that none by them be deceived, as for example concerning Drapery, or such like. To make one plaine and perspicious law divided into articles, so as every subject may know what actes be in force, what repealed, either by particuler or general words, in part or in the whole, or what branches and parts abridged what inlarged, what expounded: so as each man may clearly know what and how much is of them in force, and how to obey them, it were a necessary worke, and worthy of singular commendation: which his Majesty out of his great wisedome and care to the Common wealth, hath commanded to be done: for as they now stand, it will require great paines in reading over all, great attention in observing, and greater judgement in discerning upon consideration of the whole, what the Law is in any one particular point: But with this Caution that there be certaine Statutes concerning the administration of justice, that are in effect Edition: current; Page: [98] so woven into the Common Law, and so well approved by experience, as it will be no smal danger to alter or change them: And herein according to his Royall commandement (God willing) somewhat in due time shall be performed. For bringing of the Common Lawes into a better Methode, I doubt much of the fruit of that labour. This I know, that abridgements in many professions have greatly profited the Authors themselves; but as they are used have brought no small prejudice to others: For the advised and orderly reading over of the bookes at large in such maner as elswhere I have pointed at, I absolutely determine to be the right way to enduring and perfect knowledge, and to use abridgements as tables, and to trust only to the bookes at large: For I hold him not discreet that will Sectari rivulos,14 when he may petere fontes.15 And certain it is that the tumultuary reading of abridgements, doth cause a confused judgement, and a broken & troubled kind of delivery or utterance: But to reduce the said penall Laws into such methode & order & with such caution as is abovesaid (which cannot be done but in the high court of parliament, nor without the advise of such as before is touched) were an honorable, profitable and commendable worke for the whole common wealth. This fourth part of my Reports doth concerne the true sence & exposition of the lawes in divers & many Cases, never adjudged or resolved before: which for that they may in mine opinion tende to the generall quiet & benefit of many, The onely end (God knoweth) of the edition of them, I thought it a part of my great duty that I owe to the common wealth not to keepe them private, but being withall both incouraged, and in maner thereunto inforced, to publish and communicate them to all, wherein my comfort and contentation is great, both in respect of your singular and favorable approbation of may former labours, as for that I (knowing mine own weakenes) have one great advantage of many famous and excellent men that have taken upon them the great and painfull labour of writing: For they to give their workes the more authority and credite, have much used the figure Prosopopeia in faining divers Princes, and others of high authority, excellent wisedom, profound learning, & long experience, to speake such sentences, rules & conclusions, as they intended and desired for the common good, to have obayed and observed; As Zenophon the great in his Booke which he wrote of the Institution of Princes, faineth that king Cambyses taught and spake many excellent things Edition: current; Page: [99] to Cyrus his sonne; And in another Booke which he wrote of the Art of Chivalry, he saineth how king Philip taught and instructed his sonne Alex[an]der to fight. But I without figure, or fayning, do report and publish the very true resolutions, sentences, and judgements of the reverend Judges and Sages of the lawes themselves, who for their authoritie, wisedome, learning, and experience, are to be honoured, reverenced, and beleeved. The due observation of the said Lawes doth generally without any limitation or exception concerne all: But principally Princes, Nobles, Judges, and Magistrats, to whose custody & charge the due execution (the life and the soule of the Laws) is committed; for that they in respect of their places are more eminent & conspicuous then other men, wherein 3 things are necessarily required, Understanding, Authoritie, and Will: Understanding concerneth things and persons; That is, first what is right, and just to be done, & what ill, and to be avoyded; Secondly, what persons for merit are to be rewarded, And what for offences to be punished: And both in reward and punishment to observe quantity and qualitie. Authoritie to protect the good, and to chastice the ill. Will prompt and readie duely, sincerely, and truely to execute the law. But forasmuch as many Adversaries and two open Enemies do continually lie in wait to assault this good and ready will, it must of necessity have two defensive compleat armors of proofe: first Integrity against these sixe secret adversaries, Gyftes, Affections, Intreatie, Anger, Praecipitation, and Morosa cunctatio, peevish delay. Secondly, Fortitude and Constancie against the terror of Malice, & feare of danger, two open and violent enemies: Videte Judicesquid faciatis, non enim hominis exercetis judicium sed Domini, & quodcunq; judicaveritis in vos redundabit.16 And Deus est Judex justus, fortis, & patiens,17 and so must every Judge bee.18Justus, without respect to give every man his owne: And therefore Judicia are so called, because they are tanquã Juris dicta19 And the law whereby you Judge est mens quadam nullo perturbata affectu,20 Arist. lib. 3°. polit. Fortis against malice and daunger, Neq; timida probitas, neque improba fortitudo reipublicae est vtilis.21 And Patiens, when he doth Justice sincerely & with a good conscience, and yet is despised, Edition: current; Page: [100] despited, or disgraced: Non solum poena, sed patientia acquiret nomen persecutionis, & gloriam victoriae22 Aristotle lib. 2. Top: Melius est iudicare secundũ leges & literas, quam ex propria scientia & sententia. Ignorantia Judicis est plerunque calamitas innocentis.23 And hereof it proceedeth that the kings of this realme have had such speciall care of calling such men to judiciall places, as have knowledge, and other the incidents inseperable above mentioned. And because these Judges are (if order be observed) taken of such as be Sergeants, especially care is alwaies taken in calling men of Learning, integrity, and living to that state and degree; Never can a Judge punish extortion, that is corrupted himselfe, nor any Magistrate punish any sinne as hee ought, that is known to be an offendor therein himselfe; Therefore it is an incident inseperable to good government, that the Magistrates to whom the execution of Laws is committed be princpall observers of the same themselves. But herein heare what shalbe said, to the which nothing can be added; Et nunc reges intelligite, erudimini qui iudicatis terram. Seruite Domino in timore, et exultate ei cum tremore, apprehendite disciplinam, ne quando irascatur Dominus, et pereatis de via iusta.24 Whosoever wil be compleat Judges, Intelligite; apprehendite, erudimini, seruite, exultate25 you must be apparelled with the rich roabes of understanding & learning, you must your selves imbrace discipline, you must observe the lawes your selves, with great feare an humility, which if you will do, Seruite Domino in timore;26 you must be cheerful, & comfort your selves in doing of Justice, for you shall finde many crosses and daungers. Et exultate,27 but yet cum tremore,28 doe all these thinges least ye enter into wrath, and so ye perish from the way of righteousnesse; whereby it appeareth, that the greatest losse a Judge or Magistrate can have, is to give himselfe over to passion and his owne corrupt wil, and to loose the way of righteousnes, Et pereatis via de justa.29 To the whole bodie of the realme concerning this point I say, Edition: current; Page: [101] your fault will be the greater, If having a soveraigne so religious, wise, and learned, so great an observer of Laws, so vertuos of his own person, you apply not your selves to his example & presidet; for the heathen Poet could say; Regis ad exemplum totus componitur Orbis.30 But whilest I was intending and going about this Edition, I by commandment attended upon his most excellent Matie for direction about his highnesse affaires that concerned the duty of my place to prosecute; At what time I well perceived what princely care his Matie had taken for execution and expedition of Justice, and that upon consideration thereof hee found two impediments therein: One, that in the two eminent courts of ordinary Justice, the Kings Bench, and the Common pleas, there were foure Judges, and many times in cases of great difficultie the Judges being equally diuided in opinion in either Court, the matter depending long undecided: For preventing whereof his Majestie in this Terme of Saint Hillarie, in the first yeere of his most happy and prosperous raigne, added a Judge more to either Bench, Sir David Williams Knight, Sergeant at Law, to the King Bench; & Sir William Daniell Knight, Sergeant at Law, to the Court of Common pleas, his Majesty saying, that Numero Deus impare gaudet.31 The second impediment was, that divers doubts and questions of law remained undetermined, the same rising partly upon long and ill penned Statuts lately made, partly by reason of late and new devises and inventions in assurances, which the eye of the Law in former ages never beheld, and cannot yet incline to allow them, and partly by conveyances and willes drawne and devised by such as have Scientiam sciolorum quae est mixta Ignorantia:32 which questions and doubts already growne, his Majesty desired might bee resolved and determined according to the true sence of the Lawes of the Realme. And where there have beene som diversity of opinions betweene certain of the Courts of justice, that the same might upon conference & mature consideration be agreed and resolved. And his Majesty understanding (as it seemes) by reason of my former Editions, that I have observed many determinations and judgements of questionable and doubtfull Cases, which upon great study, consideration, conference, and deliberation, have bin resolved and given by the reverend Judges & Fathers of the Law, required me to proceed, and for the generall good and quiet of the subject to publish them, whose commandement being to me Edition: current; Page: [102]Suprema Lex, hath both incouraged & imposed a necessity upon me to publish this fourth Edition: Whith conteyneth nothing but his Majesties owne, being sweet and fruitfull flowers of his Crowne; for the laws of England are indeed so called, Jura Coronae, or Jura Regia: Because as Bracton lib. I. cap.8. saith: Ipse autem Rex, non debet esse sub homine, sed sub Deo & Lege, quia Lex facit Regem: attribuat igitur Rex legi, quod Lex attribuit ei, videlicet dominationem & imperium: Non est enim Rex ubi dominatur voluntas, & non Lex:33 that is, The King is under no man, but onely God and the Law, for the Law makes the King: Therefore let the king attribute that to the Law, which from the law he hath received, to wit, power and dominion: for where will, and not law doth sway there is no King. And in the Register the wordes of the writ of Ad Jura Regia, be, Rex &c. Salutem: Ad jura nostra Regia ne depereant, seu per aliquorum vsurpationes indebitas aliqualiter subtra-hantur, quatenus juste poterimus, manutenenda, subtractaque & occupata, si quae fuerint ad statum debitum revocanda, necnon ad impugnatores eorundem jurium nostrorum refraenandos, & prout convenit iuxta eorum demerita puniendos, eo studiosius nos decet operam adhibere, & solicitius extendere manum nostram, quo ad hoc vinculo Juramenti teneri dignoscimur & astringi, pluresque conspicimus indies jura illa pro viribus impugnare &c.,34 1. “That our Kingly Lawes and rights perish not, neither be at all withdrawn by undue usurpation of any, which so far forth as Justly we may, are to be mainteyned, & if any shall be with drawne or diverted, to be againe restored to their due state; as also for the bridling of the impugnors of those our said Lawes, & the punishing of them as is meet according to their deserts, we ought the more diligently to provid, & the more carefully to extend our hand & authority; for that we are knowne to be thereto tyed & bound by the bond of an Oath, and for that we daily see very many to their powers to impugne those said Lawes.” And againe, Rex & c. salutem. Ad conseruationem jurium Coronae nostrae, eo nos decet studiosius operam adhibere, quoad hoc astringimur vinculo Sacramenti, & alios conspicimus ad ipsorum jurium eneruationem amplius anhelare &c. concluding thus, Et sciatis quod si secus facere presumpseritis, ad vos tanquam violatores Regii juris nostri Edition: current; Page: [103] non immerito grauiter capiemus,35 which is, “We ought the more earnestly to provid for the conservation of the Lawes & rights of our Crown, as being thereunto tyed by the bond of an Oath; & for that we see others the more greedily to gape after the weakning & subverting of those said Lawes &c. concluding thus; And know ye that if ye shall presume otherwise to do wee shall with griefe not undeservedly hold you as violators of our Kingly rights & Laws.” By which ancient writs appeareth: 1. What an exorbitant offence it hath bin ever deemed to impugne or calumniate these Lawes, being the imperiall Lawes of the Crowne. 2. That in all ages, these Lawes have had many that sought to impugne and violate them: And lastly how grieuously such as so presumed to offend should be punished; Nam & frustra feruntur Leges nisi severe puniantur contemptores;36 And it is truely said, that Non debet Princeps ferre Legum suarum ludibrium:37 And wofull experience hath often taught, (which I my selfe have sometimes observed) that many of those men that have strayned their wits, & streched their tongues to scandalize or calumniate these Lawes, had either practised or plottedsome hainouscrime, and therefore hated, because they feared the just sentence and heavie stroke. The reading of the severall Reports & records of these Lawes, doth not only yeeld immence profit, as elswhere I have noted; but doth conteine the faithfull and true Histories of all successive times, as well concerning the punishment of the evill for their heinous, horrible, and exorbitant offences, as concerning the reward and advancement of men of great merit and vertue for their high and honorable service in the common wealth: And (which is above all) they are memorials to all posterity of the valorous piety, vertues, and victories of the Kings and Princes of this Realme. The first appeareth most evidently amongst other thinges by the creations and erections of men of great desert to eminent places, and degrees of nobility and honour, of such estates, and in such maner and forme, as are warranted by the Lawes of the Realme: The second by the Records of the Attainders in Judiciall proceedings against Capitall and other offendours. And the third by many excellent Records, the most faithfull and perpetuall witnesses, and worthy to be published, and made knowne to all; And therefore at this time least my Preface should exceed his proper module of Edition: current; Page: [104] that sort; Take one example of a Charter made by Edgar King of England, and Recorded, and thereby faithfully continued to this day. “Altitonantis Dei largiflua clementia, qui est Rex Regum, & Dominus Dominantium: Ego Edgarus Anglorum Basileus, omniumque rerum, Insularum Occani quae Britaniam circumiacent, cunctarumque Nationum quae infra eam includuntur Imperator & Dominus: Gratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium sic ampliauit & exaltauit super Regnum patrum meorom. Qui licet Monarchiam totius Angliae adepti sunt a tempore Athelstani, qui primus Regum Anglorum omnes Nationes quae Britaniam incolunt sibi armis subegit, nullus tamen eorum ultra fines Imperium suum dilatare aggressus est, mihi tamen concessit propitia dininitas cum Anglorum imperio, omnia regna Insularum Oceani cum suis ferocissimis Regibus vsque Norvegiam, maximamque partem Hiberniae, cum sua nobilissima Ciuitate de Dublina, Anglorum regno subiugare; quos etiam omnes meis imperiis colla subdare Dei favente gratia coegi. Quapropter & ego Christi gloriam & laudem in regno meo exaltare, & eius seruitium amplificare deuotus disposui: Et per meos fideles fautores Dunstanum videlicet Archiepiscopum, Ayelyolanum, ac Oswaldum Archiepiscopos, quos mihi patres spirituales & consilatores elegi, magna ex parte disposui &c. Facta sunt haec anno Domini 964. Indictione 8. Regni vero Edgari Anglorum Regis 6. in regia vrbe quae ab incolis Ocleayeccastriae nominatur, in natale Domini festiuitate, sanctorum Innocentium feria 4. &c. ✠ Ego Edgar Basileus Anglorum & Imperator Regum gentium, cum consensu & Principum & Archimeorum meorum hanc meam munificentiamsigno crucis corroboro. ✠ Ego Alfriie Reginacon sensi & signo crucis confirmaui. ✠ Ego Dunstan. Archiepiscopus Dorobor. Ecclesiae Christi consensi & subscripsi. ✠ Ego Osticel. Archiepiscopus Eboracensis Ecclesia consensi & subscripsi. ✠ Ego Alferic. Dux. Ego Bruthnod. Dux. Ego Aridgari Dux.38 ✠” Whereby is to be observed, first his piety and devotion towards God the fountaine of all happinesse, the Edition: current; Page: [105] true Summum bonum.39 Secondly, the largenesse of his Empery, and the first Conquest of Ireland, long before the Raigne of King Henry the second. To conclud, of the learned Reader my desire is, that he would eithar amend that which herein he shall finde amisse, or at least that he will not finde fault with any part, untill he hath seriously read over the whole, and then it may be he will reprehend the lesse: And although herein I have taken all the labour; yet I unfainedly wish to all the Readers, all, or at the least equall profit.

Ed.: A case of slander. Lord Cromwell brought some renegade preachers into Northlingham, to preach against the new Book of Common Prayer, Edition: current; Page: [106] which had been required by the Queen to be used in all churches. Edmund Denny, the vicar of Northlingham, complained apparently directly to Lord Cromwell, who replied, “Thou are a false varlet, and I like not of thee.” Denny then replied to Lord Cromwell, “It is no marvel that you like not me, for you like of those that maintain sedition against the Queen’s proceedings,” in other words, Denny accused Cromwell of supporting heresy. Cromwell sued for scandal using a device known as a pleading qui tam (literally, “who also”) by which a private person may bring a lawsuit for a violation of a criminal law. The jury rejected Denny’s argument that his statement was true. Coke defended Denny, demonstrating the faulty pleading of the plaintiff’s lawyer, who had cited a poor translation of the statute on which he based his suit from law French into English, which garbled the nature of the claim under the statute as it was in force. This case is interesting for a host of reasons. The use of pleadings qui tam has enjoyed a revival in twentieth-century American procedure, and the case is also an example of the courts’ voiding of a private act of Parliament. It is an interesting case for the role played by Coke, who throughout his career supported the established Church of England against a host of detractors. It was also Coke’s first big case, which Coke won through the careful use of technical pleading standards. Look for his instructions to law students in this regard, near the end of the report. For the fate that awaited Rev. Denny had Coke not found the technical flaw, see The Case de Libellis Famosis, at p. 145.

Henry Lord Cromwell brought an Action de Scandalis magnatum1 against Edmund Denny, Vicar of Northlingham in the county of Norfolk, tam pro dom’ Regina, quam pro seipso;2 and declared upon the stat. of 2 R. 2. cap. 5. That if any contrive aliqua falsa nova, horribilia et falsa nuncia de Praelatis, Ducibus, Comitibus, et aliis Proceribus et Magnatibus Angliae, &c.3 by which debate may arise betwixt the Lords and Commons (which God forbid) by which danger, mischief and destruction may happen to the whole Realm, &c. Edition: current; Page: [107] and quicunque contra fecerit,4 shall incur the penalty of the stat. of W. I. c. 33. And the defendant was charged that he said to the plaintiff, then a baron of the realm, “It is no marvel that you like not of me, for you like of those that maintain sedition against the Queen’s proceedings.” The defendant justified the words, upon which the plaintiff demurred, and the bar was held insufficient. And term’ Trinity 23 Eliz. in arrest of judgment it was moved by the defendant’s counsel, that the declaration was insufficient, because the said Act of 2 R. 2. was mis-recited; for the words of the Act are, Si ascun “controver ascum faux nouvelles et horribles et faux messoinges,”5 which word “messoinges” he who translated the statutes at large into English, has translated “messages” which was the reason that he who drew the declaration in the case at Bar inserted the said word “nuncia” where it should be “mendacia”. 2. The said Act saith, “and whosoever shall do it, shall incur, &c.” And the plaintiff in his declaration saith, et quicunq; contra fecerit, which is as much as to say, “who shall not do it;” But against that it was objected, That the said Act was a Private Act, it concerning only the |Edition: Sheppard2003; Page: [13 a] prelates, nobles, and certain great officers, whereof the Court would not take notice ex officio; and therefore the Court ought to take the Act as the party has alleged it: But it was resolved by Wray, Chief Justice, Sir Thomas Gawdy, et totam Curiam,6 that it was such Act, whereof the Court ought to take notice; and eo magis7 because it by a means concerns the King himself.

1. For as much as it touches the Prelates, Nobles, and great Officers, which are of the King’s Council, and of eminent qualities, and serve him in so high and honourable Offices, which they have under the King, and by his Royal authority have the administration of justice to his subjects, by which it appears that the slandering of them principally concerns the King himself in his Royal government.

2. In as much as the statute saith, That danger, mischief, and destruction may happen to the whole realm, &c. that also concerns the King, for he is the Head of the Realm; and these are the reasons that always such actions de scandalis magnatum8 have been brought upon the said statute tam pro domino Edition: current; Page: [108] Rege quam pro se ipso9 and of all statutes which concern the King, the Judges ought to take notice of them.

Also, it was likewise resolved that if the Act was private, and that the Court ought to take it to be such as is alleged; Then the said Act was against law and reason, and therefore void; For as the same is alleged those who do not offend shall be punished, and thatwas condemnare insontem et demitterereum:10 for which cause judgment was given against the plaintiff quod nihil capiat per billam.11 And afterwards the plaintiff brought a new action, and amended the faults of the Declaration: And then the Court was moved that the said words were not Actionable, because it might well be that the plaintiff meant liking of some persons which maintain sedition against the Queen’s proceedings, and yet he did not know that they maintain sedition, nor do the words import that the plaintiff knew that they maintained sedition. And it was said, quod sensus verborum est duplex, scil. mitis et asper; et verba semper accipienda sunt in mitiori sensu:12 To which it was said, that sedition is a public thing. Et dicitur seditio quasi seorsum itio magni populi, quando itur ad manus,13 which is notably described by the Poet:

By which sedition (being so public and violent) it was said that by common intendment the plaintiff had notice of it; and it is not like felony or murder which may be clandestine, and done in secret. But as to that, the Judges did not deliver any opinion, for they said, that upon argument and consideration they might alter their opinion |Edition: Sheppard2003; Page: [13 b] which they now conceived, which would be dangerous to the party; and therefore they said to the defendant’s counsel, Be Edition: current; Page: [109] well advised, and plead, or demur at your peril; wherefore they pleaded a special justification (well knowing that the other matter should be saved to them) and the effect of the justification was, That the defendant was Vicar of Northlinham, which was a Benefice with Cure, and that the plaintiff procured J. T. and J. G. to preach severally in the church of Northlinham, who in their sermons inveighed against the Book of Common Prayer, which was established by the Queen and the whole Parliament in the first year of her reign, and affirmed it to be superstitious and impious, &c. upon which the plaintiff and defendant speaking in the said church of these sermons, because the vicar knew they had no licence, nor were authorised to preach; when they were ready to preach, before their sermons forbad them, but they by the encouraged by the Plaintiff proceeded. The plaintiff said to the defendant,“Thou art a false varlet, and I like not of thee;” to which the vicar said, “It is no marvel though you like not of me, for you like of these (innuendo praed’15 J. T. and J. G.) that maintain sedition, (innuendo seditiosam illam doctrinam16) against the Queen’s proceedings;” and so justified: And it was moved by the plaintiff’s counsel, that this bar was insufficient for divers causes.

1. The matter of justification was insufficient, because (as has been said) sedition cannot be committed by words, but by public and violent action.

2. If the matter of justification was sufficient, then upon the said Dialogue between the plaintiff and defendant the defendant is not guilty: But it was said, that such justification dialogue-wise had not been seen before; but if the truth of the cause is such, he ought to plead not guilty, and give the special matter in evidence.

But if he will justify, he ought to justify the words in the same sense they import upon the matter alleged in the declaration. As if a man bring an Action upon the Case for calling the Plaintiff murderer; The Defendant will say, that he was talking with the plaintiff concerning unlawful hunting, and the plaintiff confessed that he killed several hares with certain engines; to which the defendant answered and said, “Thou art a murderer” (innuendo the killing of the said hares) this is no justification, for he does not justify the sense of the words which the declaration imports, and therefore he ought to plead not guilty; But as to that it was answered by the defendant’s counsel, and resolved Edition: current; Page: [110] by the whole Court, that the justification was good. For in case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking of them: for sensus verborum ex causa dicendi accipiend’ est, et sermones semper accipiendi |Edition: Sheppard2003; Page: [14 a]sunt secundum subjectam materiam.17 Then in this case the defendant’s counsel have done well to shew the special matter by which the sense of this word “sedition” appears upon the coherence of all the words, that it was in the defendant’s meaning, the said seditious doctrine against the Queen’s proceedings, scil. the said Act of Parliament de anno primo,18 by which the Book of Common Prayer was established, and that he did not mean any such public or violent sedition as has been described, and as ex vi termini per se19 the word itself imports; and it was said, God forbid that a man’s words should be by such strict and grammatical construction taken by parcels against the manifest intent of the party upon consideration of all the words, which import the true cause and occasion which manifest the true sense of them; quia quae ad unum finem locuta sunt, non debent ad alium detorqueri:20 and therefore in the said case of murder, the Court held the justification good; and that the defendant should never be put to the general issue, when he confesses the words and justifies them, or confesses the words, and by special matter shews that they are not actionable. And although he varies from the plaintiff in the sense and quality of the words, yet it is no cause to drive him to the general issue; as in maintenance, the plaintiff charges the defendant with unlawful maintenance, the defendantmay justify by reason of a lawful maintenance, and may not plead the general issue: wherefore the plaintiff replied and said, Quod praed’ Edwardus Denny dixit propalavit et praedicta verba, &c. de injuria sua propria absque tali causa,21 and thereupon issue was joined; et postea partes concordaverunt;22 and this was the first cause that the author of this book (who was of counsel with the defendant) moved in the King’s Bench.

Edition: current; Page: [111]

In this case Reader, you may observe an excellent Point of Learning in Actions for Slander, to observe the occasion and cause of the speech, and how the same may be pleaded in excuse of the Defendent.

2. When the matter in fact will clearly serve for your client, although your opinion is that the plaintiff has no cause of action, yet take heed you do not hazard the matter upon a demurrer; in which, upon the pleading, and otherwise, more perhaps will arise than you thought of; but first take advantage of the matters of fact, and leave matters in law, which always arise upon the matters in fact ad ultimum23 and never at first demur in law, when after the trial of the matters in fact, the matters in law (as in this case it was) will be saved to you.

Cutler v. Dixon.

(1585) Michalmass Term, 27 and 28 Elizabeth I In the Court of King’s Bench.

First Published in the Reports, volume 4, page 14b.

Ed.: This is a note on the King’s Bench’s holding that a defendant in an action brought before a justice of the peace may not bring a separate lawsuit against the plaintiffs for allegations made in the pleadings of the initial suit.

It was adjudged, That if one exhibits Articles to Justices of Peace against a person certain, containing divers great abuses and misdemeanors, not only concerning the Petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; In this case the party accused shall not have for any matter contained in such Articles any Action upon the Case, for they have pursued the ordinary course of Justice in such case: And if Actions should be permitted in such cases, those who have just cause for complaint, will not dare to complain for fear of infinite vexation.

Edition: current; Page: [112]

Vaux’s Case.

(1591) Easter Term, 33 Elizabeth I In the Court of King’s Bench.

First Published in the Reports, volume 4, page 44a.

Ed.: William Vaux was arrested for poisoning Nicholas Ridley, which apparently he did at the instigation of Ridley’s wife, by having Ridleyconsume a drink poisoned with ground cantharide beetles. Ridley died. Vaux was indicted, but the form of his indictment neglected to state that Ridley actually drank the poison. The court of assize rendered a judgment that Vaux was a murderer but the indictment was insufficient. Vaux argued he was not guilty, but that anyway he could not be tried twice for the same crime. The King’s Bench agreed that the Common Law will not allow double jeopardy, or a person to be twice put in jeopardy of trial for the same offence, but that in this case Vaux had never been truly acquitted because he had never been in danger of punishment. An insufficient indictment cannot be the basis for release even upon a guilty verdict or a confession, but there must be a new trial. Vaux was retried, found guilty, and hanged.

And, first, it was resolved per totam Curiam,4 That the said indictment upon which Vaux was so arraigned was insufficient; and principally because it is not expressly alleged in the indictment, that the said Ridley received and drank the said poison, for the indictment is, praed’ Nich’ nesciens praed’ potum cum veneno fore intoxicatum, sed fidem adhibens dict’ persuasioni dicti W. recepit et bibit, per quod, &c.5 So that it doth not appear what thing he drank, for these words (“venenum praed ”)6 are wanting; and the subsequent words, scilicet per quod praedict’ N. immediate post receptionem veneni praedict’ &c.7 which words imply receipt of poison, are not sufficient to maintain the indictment, for the matter of the indictment ought to be full, express, and certain, and shall not be maintained by argument or implication, because the indictment is found by the oath of laymen.

2. It was agreed per Curiam, That Vaux was a principal murderer, although he was not present at the time of the receipt of the poison, for otherwise he would be guilty of such horrible offence, and yet should be unpunished, which would be inconvenient and mischievous: for every felon is either principal or accessary, and if there is no principal there can be no accessory, quia accessorium sequitur principalem;8 and if any had procured Vaux to do it, he had been Edition: current; Page: [115] accessary before; quod |Edition: Sheppard2003; Page: [45 a]nota9 a special case, where the principal and accessory also shall both be absent at the time of the felony committed.

3. It was resolved by the Lord Wray, Sir Thomas Gawdy, Clench, and Fenner, Justices, that the reason of Auterfoits acquit10 was, because where the Maxim of Common Law is, that the life of a man shall not be twice put in jeopardy for one and the same offence, and that is the reason and cause that Auterfoits acquitted or convicted of the same offence is a good plea; yet it is intendable of a lawful acquittal or conviction, for if the conviction or acquittal is not lawful, his life was never in jeopardy; and because the indictment in this case was insufficient, for this reason he was not legitimo modo acquietatus,11 and that is well proved, because upon such acquittal he shall not have an action of conspiracy, as it is agreed in 9 Edw. 4. 12 a. b. vide 20 Edw. 4. 6. And in such Case in Appeal, notwithstanding such insufficientindictment, the abettor shall be enquired of as it is there also held; and although the judgment is given that he shall be acquitted of the felony, yet this acquittal shall not help him, because he was not legitimo modo acquietatus; and when the law saith, that Auterfoits acquitted is a good plea, it shall be intended when he is lawfully acquitted; and that agrees with the old book in 19 Edw. 3. Corone 444. where it is agreed, That if the process upon indictment or appeal is not sufficient, yet if the party appears (by which all imperfections of the process are saved) and is acquitted, he shall be discharged; but if the appeal or indictment is insufficient (as our case is) there it is otherwise: But if one, upon an insufficient indictment of felony, has judgment, quod suspend’ per coll’,12 and so attainted, which is the judgment and end which the law has appointed for the felony, there he cannot be again indicted and arraigned until this judgment is reversed by error: But when the offender is discharged upon an insufficient indictment, there the law has not had its end; nor was the life of the party, in the judgment of the law, ever in jeopardy; and the wisdom of the law abhors that great offences should go unpunished, which was grounded without question upon these ancient maxims of law and state; maleficia non debent remanere impunita, et impunitas continuum affectum tribuit delinquendi, et minatur innocentes qui Edition: current; Page: [116] parcit nocentibus:13 So if a man be convicted either by verdict or confession upon an insufficient indictment, and no judgment thereupon given, he may be again indicted and arraigned, because his life was never in jeopardy, and the law wants its end; And afterwards, upon a new indictment, the said Vaux was tried and found guilty, and had his judgment and was hanged.

Slade’s Case.

Ed.: John Slade entered a contract with Humphrey Morley. Slade sold the grains he was growing on eight acres, and Humphrey promised to pay £16. The day for payment came and went with no sign of the money from Humphrey, and Slade sued in assumpsit, a form of contract enforcement action that was then still controversial if an action in debt was available, by bringing an action on the case, which is a special form of pleading that allowed the recovery of special damages (or actual damages that included not only money directly lost by the conduct of the defendantbutalsomoney indirectly lost as a result of the defendant’s conduct). Thus Slade could seek not only compensation for the damages he suffered but the money lost on the whole debt. Humphrey was represented by Dodderidge and Bacon. Coke represented Slade. The courts were initially divided over whether the action could be maintained, but when the argument was brought before the whole bench of all the courts of England, the King’s Bench found that a person harmed by another’s breach on a contract could seek an action, and the other benches appear to have acquiesced. Assumpsit and action on the case were allowed, even though the plaintiff could have sued in debt.

Edition: current; Page: [117]

John Slade brought an Action upon the Case in the Kings Bench against Humphrey Morley, (which plea began Hill. 38 Eliz. Rot. 305.) And declared, that where as the Plaintiff 10 Nov. 36 Eliz. was possessed of a Close of land in Halberton in the County of Devon called Rack Park, containing by estimation eight acres for term of divers years then and yet to come, and so possessed, the Plaintiff the said 10 Nov. the said Close beforesaid sowed with Wheat and Rie, which Wheat and Rie 8 Maii, 37 Eliz. were grown into blades: The Defendant in consideration that the Plaintiff at the special instance & request of the said Humphrey. bargained and sold to him the said blades of Wheat and Rie growing upon the said Close (the tithes due to the Parson, &c. excepted) did assume and promise to the Plaintiff to pay him 16l. at the Feast of S. John the Baptist then next to come; and for not-payment thereof at the said Feast of S. John Baptist, the Plaintiff brought the Action; The Defendant pleaded Non assumpsit modo et forma;1 and on trial of this issue the Jurors gave a special Verdict, Scil. That the Defendant bought of the Plaintiff the Wheat and Rie in blades growing upon the said Close as aforesaid, prout2 in the Declaration is alleged. And further found, that between the Plaintiff and Defendant, there was no other promise or assumption but onely the said bargain; And against the maintenance of this Action divers Objections were made by John Doderidge of Counsel with the Defendant.

1. That the Plaintiff upon this bargain may have ordinary remedy by Action of Debt which is an Action formed in the Register, and therefore he shall not have an Action upon the Case which is an extraordinary Action, and not limited within any certain form in the Register; for ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium, et nunquam decurritur ad extraordinarium ubi valet ordinarium,3 as it appeareth by all our Books; et nullus debet agere actionem de dolo, ubi alia actio subest.4

The second Objection was that the |Edition: Sheppard2003; Page: [93 a] maintenance of this Action doth take away the Defendants benefit of Wager of Law, and so bereaveth him of the benefit which the Law hath given him as his birthright. For peradventure the Defendant hath paid or satisfied the Plaintiff in private betwixt them, of which Edition: current; Page: [118] paiment or satisfaction he hath not any witness, and therefore it should be mischievous if he shall not wage his Law in such Case. And that was the cause (as was said) that debts by simple contract shall not be forfeited to the King by outlawry or attainder, becausethatthen by the Kings Prerogative the Subject would be ousted of his wager of Law, which is his birthright as it is holden in 49 Edw. 3. 5a. 50 Ass. 1. 16 Edw. 4. 4 & 9 Eliz. Dyer 262. And if the King shall lose the forefeiture and the debt in such Case, and the debtor by Judgment of the Law shall be rather discharged of his debt, before he shall be deprived of the benefit which the Law hath given to him for his discharge, although that in truth the debt were due and payable; a fortiori5 in the case at Barre, the Defendant shall not be charged in an Action in which he shall be ousted of his Law when he may charge him in an Action of debt, in which he may have the benefit thereof.

And as to these Objections, the Courts of King’s Bench and Common Pleas were divided; for the Justices of the King’s Bench held that the Action (notwithstanding such Objections) was maintainable; And the Court of Common Pleas held the contrary. And for the honour of the Law, and the quiet of the Subject in the appeasing of such diversity of opinions (Quia nil in lege intolerabilius est eandem rem diverso jure censeri)6 the case was openly argued before all the Justices of England, and Barons of the Exchequer, Scil. Sir John Popham Knight Chief Justice of England, Sir Edmund Anderson Knight Chief Justice of the Common Pleas, Sir William Periam Chief Baron of the Exchequer, Clark, Gawdy, Walmesley, Fenner, Kingsmill, Savile, Warberton, and Yelverton, in the Exchequer Chamber, by the Queens Attorney for the Plaintiff, and John Dodderidge for the Defendant; and at another time the Case was argued at Serjeants Inn before all the said Justices and Barons, by the Attorney General for the Plaintiff, and by Francis Bacon for the Defendant; and after many conferences between the Justices and Barons, it was resolved, that the Action was maintainable, and that the Plaintiff should have Judgment. And in this Case these Points were resolved.

1. That although an Action of debt lieth upon the contract, yet the bargainor may have his Action of debt, or Action upon the Case at his election, and that for three reasons or causes. 1. In respect of infinite precedents, (which Edition: current; Page: [119] George Kempe, Esquire Secondary of the Prothonotaries of the King’s Bench shewed to me) as well in the Court of Comon Pleas as in the Court of King’s Bench, in the reigns of King Hen. 6. Edw. 4. Hen. 7 & Hen. 8. by which it appeareth, That the Plaintiffs declared that the Defendants in consideration of a sale to them made of certain goods, did promise to pay so much money, &c. in which |Edition: Sheppard2003; Page: [93 b] Cases the Plaintiffs had Judgment. To which precedents and Judgments being of so great number, in so many successions of ages, and in the several times of so many reverend Judges, the Justices in this Case gave great regard; and so the Justices in ancient times, and from time to time did as well in matters of form, as in deciding of doubts and questions as well at the Common Law, as in construction of Acts of Parliament: And therefore in 11 Edw. 2. Formedon 32. it is holden, That the ancient forms and manner of precedents are to be maintained and kept; and in 34 Ass. 7. that which hath not been according to usage shall not be suffered, [and in 2 Edw. 3. 29. the ancient form and order is to be observed.]7 In 39 H. 6. 30. the opinion of Prisot’ et tot’ Cur’8 was, That in a Writ of mesn9 the Plaintiff ought to surmise the tenure between the Lord paramount and the mesn, as well as between the mesn and the tenant, and shew there divers reasons and causes of their opinions; But when the Justices were informed by the Prothonotaries, that the Book called les Tales, contained the form that had always in such Cases been used; the Book saith, That the Justices resolved, that they would not change the usage, notwithstanding that their opinion was to the contrary; and according to the precedent they awarded the Declaration good: 4 Edw. 4. 44. In a Writ of Error brought by John Paston to reverse an outlawry against him, he did not surmise in the Writ at whose suit he was outlawed, and all the Justices said, it was a strange Writ, and no certainty supposed thereby; for by the Writ it did not appear whether he was outlawed at the suit of the party, or at the King’s suit, or in what suit, or for what thing; and it might be that he was outlawed for felony, debt, trespass, account or fine to the King; But when the Court was informed that the ancient form was such, then they changed their opinions and awarded the Writ good. And resolved, that common course maketh a Law, although that now as there it was said, perhaps Edition: current; Page: [120] reason willeth the contrary: But there the Justices said, We cannot change the Law now, for that shall be inconvenient. And therewith agreeth L. 5 Edw. 4. 1. where it is said, That the course of a Court maketh a Law: vide Mich. 2 & 3 Phil. & M. 120. the statute of West. 2. cap. 12, quod justic’ coram quib’ format’ erit’ appellum et terminat10 shall enquire of damages where the Defendant is acquitted, yet precedents expound the Law against the express letter, Scil. That Justices of Nisi Prius (before whom the appeal was not began) shall do it; And many others to this effect are in our Books: But for as much as precedents are not always allowable, for in our Books: the Judges reject some precedents, see a notable Case in L. 5 Edw. 4. 110. for certain rules and differences in this matter; there it is agreed, That where a question was of a retorn of an Assise, and two or three precedents were shewed, which agreed with the said retorn; and the Justices said, that two or three retorns or precedents doe not make a Law or custome, especially when there are here in Court 40 and more precedents to the contrary; but if there were no precedent to the contrary it were another |Edition: Sheppard2003; Page: [94 a] matter, if not that the Court doe adjudge it against reason, and then it shall be amended, for perhaps the precedents passed without challenge of the party, or debate of the Justices, as then (as it is there recited) of late it was in a Writ of Error for reversing an outlawry in the County of Lancaster, and the Error was because the Sheriff retorned, That ad com’ Lancastriae tent’ ibid’, &c.11 where it should be, ad com’ Lancastriae tent’ apud Lancastr’,12 or other certain place to which this word ibidem shall have relation; and although that there were shewed 100 precedents according to the said retorn, yet the outlawry was reversed: So that in divers Cases precedents do not make a Law; and therefore it was said by the Justices to the parties, That he who would have advantage of precedents ought to search for them at his peril, and for his speed, for the Court would not search for them; for if none, or no usual precedents are not shewn, the Court ought to adjudge according to Law and reason.

Out of which Book, 1. It is to be observed, that two or three or such small number of precedents, doe not make a Law against the generality of precedents in such Case.

2. That the retorn of Sheriffs or Entries of Clerks without challenge of the party, or consideration of the Court being against Common Law and reason, Edition: current; Page: [121] are not allowable: But when the precedents are Judicial, Scil. where the Justices by divers succession of ages have given in Actions there brought, it shall be intended that some of the Counsel with the Defendant, or some of the Justices before whom the Action was tried, and the Record read would have excepted against it, if in their judgment the Action was not maintainable: but in Case of return of an Outlawry, or entries of Clarks, the Records pass in silence, and without exception of the parties, and therefore are not so authentical as Judgments upon demurrers or verdicts; and therefore in such Cases Multitudo errantium non parit errori patrocinium,13 if such retorns or entries of Clerks and Officers be clearly in the opinion of the Justices against Law and reason: So that in the Case at Barre it was resolved, That the multitude of the said Judicial precedents in so many successions of ages well prove that in the Case at Barre the Action was maintainable.

3. It was resolved, That every contract executory importeth in it self an Assumpsit,14 for when one agreeth to pay money, or to deliver anything, thereby he promiseth to pay, or deliver it; and therefore when one selleth any goods to another, and agreeth to deliver them at a day to come, and the other in consideration |Edition: Sheppard2003; Page: [94 b] thereof promiseth to pay so much money to the other, in this Case both parties may have an Action of debt, or an Action upon the Case on Assumpsit, for the mutual executory agreement of both parties importeth in it self reciprocal Action upon the Case, as well as Action of debt, and therewith agreeth the Judgment in Reade and Norwoods Case Plow Comm. 128.

4. It was resolved, That the Plaintiff in this Action upon the Case upon Assumpsit shall not recover onely damages for the special loss (if any be) which Edition: current; Page: [122] he hath, but also for the whole debt, so that recovery or barre in this Action shall be a good barre in an Action of debt brought upon the same contract; so vice versa, a recovery or barre in an Action of debt is a good barre in an Action upon the Case upon Assumpsit. Vide 12 Edw. 4. 13 a. 2 Rich. 3. 14. (2) 33 Hen. 8. Action sur le Case. Br. 105.

5. In some Cases it shall be mischievous, if an Action of debt shall be only brought, and not an Action upon the Case, as in the Case (inter) (Redman and Peck) 2 & 3 Phil. & Mar. Dyer 113. They bargained together that for a certain consideration Redman should deliver to Peck 20 Quarters of Barley yearly during his life, and for not delivery in one year it is adjudged that an Action well lieth, for otherwise it shall be mischievous to Peck, for if he should be driven to his Action of debt, then he himself shall never have it, but his Executors or Administrators, for debt doth not lie in such Case till all the days be incurred, and that shall be contrary to the bargain and intent of the parties, for Peck doth provide it yearly for his necessary use: So (5 Ma. Br. Action sur le Case 108.) that if a sum be given in marriage to be paid at several days, an Action upon the Case lieth for non-payment at the first day, but no Action of debt lieth in such case till all the days are past. Also it is good in these days in as many Cases as may be done by the Law, to oust the Defendant of his Law, and to try the same by the Country, for otherwise it shall be a great occasion of Perjury.

6. It was said, That an Action on the Case on Assumpsit is as well a formed Action and contained in the Register, as an Action of debt, for there is its form. Also it appeareth in divers other Cases in the Register, That an Action on the Case will lie, although the Plaintiff may have another formed Action in the Register; F. N. B. 94 g. & Register 103 b. If a man hath a mannor within any Honour, and has a Leet within his mannor of his Tenants, if he or his tenants are distrained by the Lord of the Honour to come to the Leet of the Honour, he who is so distrained may have a general Action of Trespass, or a special Writ upon his Case: So if any Officer take toll of him who ought to be quit of toll, he shall have a general Action of trespass, or an Action upon his Case, as appeareth by Fitz. ibid. 94. And if a Prior or other Prelate be riding in his journey, and one distrainth his horse upon which |Edition: Sheppard2003; Page: [95 a] he rideth when he may distrain other goods. he may have a general Action of Trespass or an Action upon his Case, as appeareth in the Register (100 b. and F. N. B. 93. H.), If the Sheriff suffer one in Execution upon a Statute Merchant to escape, the conusee may have an Action of debt, or an Action upon the case Edition: current; Page: [123] (H), as appeareth by the Register, 98 b. and F. N. B. 93. B. C. So if a man put the Executors of lessee for years out of their term, they may have a special Writ upon their Case, as appeareth F. N. B. 92. G. & Register 97. and yet he may have Ejectione firmae,15 or Trespass. And therefore it was concluded that in all cases when the Register hath two Writs for one case, it is in the parties election to take which Writ he will: But the Register hath two several Actions, Action upon the Case upon Assumpsit, andalsoan Actionofdebt, and therefore the party may elect the one or the other.

And as to the Objection which hath been made, that it shall be mischievous to the Defendant that he shall not wage his Law, forasmuch as he might pay it in secret: To that it was answered, That it shall be accounted his folly that he took not sufficient witnesses to prove the paiment he made; But the mischief shall be rather on the other part, for now experience proves that mens consciences grow so large, that the respect of their private commodity induceth men (and chiefly those who have declining estates) to perjury; for jurare in propria causa (as one saith) est saepenumero hoc seculo praecipitium diaboli ad detrudendas miserorum animas ad infernum.16 And therefore in debt, or any Action where Wager of Law is admitted, the Judges doe not admit him to it without good warning, and due examination of the party. And as to the Case which was cited, That debts or duties due by single contract where the party may wage his Law shall not be forfeit by outlawry, because the debtor thereby should be ousted of his Law; To that it was answered by the Attorney General, that in such Cases by Law debts or duties shall be forfeit to the King, and so are the better opinions of the Books scil 3 Edw. 3. Corone 343. 19 Edw. 2. Avowry 223. If the tenant of a Prior alien is amerced for want of suit at a Court-Baron, and the King seiseth the temporalties of the Prior alien, yet in an action of debt brought for the same by the prior alien, he shall wage his Law, as it was adjudged 6 Edw. 6. in Serjeant Bendloes Reports, 28 Edw. 3. 92. in Accompt, and Stamford Pleas of the Crown 188. and infinite precedents in all ages in the Exchequer which I have seen approve it. And so it was of late resolved in the Exchequer, and so was holden in this Case by Popham, Anderson and all the other Justices with whom I have conferred, against the sudden opinions in Edition: current; Page: [124]49 Edw. 3. 5. 50 Ass. 1. 16 Edw. 4. 4. & 9 Eliz. 262. and so you have |Edition: Sheppard2003; Page: [95 b] a doubt in our Books well resolved.

And note Reader, that in every quo minus17 brought by the King’s debtor in the Exchequer against one who is indebted to him upon a simple contract, the Defendant shall not have his Law, for the benefit of the King, as appeareth in 8 Hen. 5. Ley 66. 20 Edw. 3. Ley. 52. 10 Hen. 7. 6. and yet there the King is not party, a fortiori18 when such debt or duty is forfeit to the King, and the King is the sole and immediate party: And note, Reader, this Resolution as to this point with the Judicial Law of God, upon which our Law is in this point grounded, for it appeareth by the 22 Chapter of Exodus, ver. 7. Si quis commendaverit amico pecuniam, &c. et ver. 10. Si quis commendaverit proximo suo asinum, bovem, ovem, et omne jumentum ad custodiam, et mortuum fuer’, aut debilitatum aut captum ab hostibus, nullusque hoc viderit, jusjurandum erit in medio quod non extenderit manum ad rem proximi sui, suscipietque Dominus juramentum et ille reddere non cogetur;19 By which it appeareth; that it is in the election of the party, either to charge the Defendant by witnesses if he will and to oust him of his Law, or to referre it to the Defendants oath. And the Text saith, Nullusque hoc viderit, scil.20 if there be no witnesses. So by our Law in the same Case put in the Text, the owner hath his election either to bring his Action upon the Case in which the Defendant cannot wage his Law, or an Action of detinue21 in which he may, Et jusjurandum in hoc casu est finis;22 for the Plaintiff is bound thereby, and it is the end of all controversie. And I wonder in these days so little consideration is had of an oath, as I daily observe; cum jurare per Deum actus religionis sit, quo Deus testis adhibetur tanquam is qui sit omnium rerum maximus, &c.23

Edition: current; Page: [125]

Part Five of the Reports

The Fifth Part of Coke’s Reports was published in 1605. It was originally entitled Quinta pars Relationum Edwardi Coke Equitis aurati, Regii Attornati Generalis. De variis Resolutionibus & Judiciis, magnâ & maturâ deliberatione in rebus permagni momenti & ponderis, â reverendis Judicibus & Juris-consultissimis latis; unà cum Resolutionum & indiciorum Rationibus & Causis. In lucem aedita anno foelicissimi & florentissimi regni Regis Jacobi, Angliae Franciae & Hiberniae, 3. Scotiae verò 39. augustissimaeq. Majestati eius, justitiae fonti, & legem animae, subiectissima observantiae ergò meritò dedicata & consecrata. In English, The Fifth part of the reports of Sr. Edward Coke, Knight, the Kings Attorney Generall. Of divers Resolutions and Judgments given upon great deliberation, in matters of great importance & consequence by the reverend Judges and Sages of the Law; together with the reasons and causes of their Resolutions and Judgements. Published in the yeare of the most happie and prosperous raigne of King James, of England, France and Ireland the 3. and of Scotland the 39. and in all humblenesse, of right, dedicated to his most excellent Majestie, being the fountaine of Justice, and the life of the Law. The cases in this part are concerned, first, with the administration of law over church matters, particularly the regulation of the clergy and church lands by ecclesiastical and law courts. There are substantial collections of cases on the following: covenants in land, contracts, and leases, including waste and rights to a shipwreck; usury and lending; executions on a debt; the regulation and removal of officeholders; the by-laws and ordinances of cities; city, commercial, and manorial customs; and officials’ powers of search and arrest.

Edition: current; Page: [126]

Epigram from the title page:

(Preface) To the Reader.

It is truely said (good Reader) that Error (Ignorance beeing her inseperable twynne) doeth in her proceeding so infinitely multiply her selfe, produceth such monstrous & strange Chimaeraes, floateth in such and so many incerteinties, and sucketh downe such poyson from the contagious breath of ignorance, as all such into whom she infuseth any of her poysoned breath, shee dangerously infects or intoxicates; And that which is wonderfull before shee can come to any end, she bringeth all things (if she be not prevented) by confusion to a miserable and untimely end; Naturalia & vera artificialia sunt finita, nullus terminus falso, error immensus.2 On the other side, Trueth cannot bee supported or defended by any thing but by Trueth her selfe and is of that constitution and constancie, as she cannot at any time or in any part or poynt bee disagreeable to her selfe; she hateth all bombasting and sofistication, and bringeth with her certainty, unity, simplicity and peace at the last; Putida salsamenta amant origanum, veritas per et placet, honestae per se decent, falsa fucis, turpia phaleris indigent.3 Ignorance is so far from excusing or extenuating the error of him that had power to find out the Trueth (which necessarily he ought to know) and wanted only will to seek it, as shee will be a just cause of his great punishment. Quod scire debes et non vis, non pro ignorantia sed pro contemptu haberi debet.4 Error and falshood are of that condition, as without Edition: current; Page: [127] any resistance they will in time of them selves fade and fall away: But such is the state of Trueth, that though many doe impugn her, yet will shee herself ever prevail in the end, and flourish like the palm-tree; shee may peradventure by force for a time be trodden down, but never by any means whatsoever can shee be trodden out. There is no subject of this Realme, but being instructed by good and plain evidence of his auntient and undoubted patrimony and birthright, (though hee hath for some by ignorance, false persuasion, or vain feare, been deceived or dispossed) but will consult with learned and faithfull counsellors for the recovery of the same.

The auntient & excellent Lawes of England are the birth-right and the most auntient and best inheritance that the subjects of this realm have, for by them hee injoyeth not onely his inheritance and goods in peace & quietnes, but his lyfe and his most deare Countrey in safety. And for that I feare that many of my deare Countreymen, (and most of them of great capacitie, and excellent parts) for want of understanding of their own evidence, doe want the true knowledge of their auntient birth-right in some points of greatest importance. I have in the beginning of this my fift work, directed them to those that will not only faithfully counsell, & fully resolve them therein, (such as cannot be daunted with any feare, mooved by any affection, nor corrupted with any reward, but also establish and settle them in quiet possession. Upon just grounds to rectifie an Error in a mans owne mind is a work of a cleare understanding, & of a reformed will, and frequent with such as be good men, & have sober and setled wits. The end of such as write concerning any matter, which by some for want of instruction is called into controversie, should be, with al the candor & charity that can be, used, to perswade and resolve by demonstrative proofes the diligent Reader in the truth. But now adayes those that write of such matters, doe for the most part by their bitter and uncharitable invectives, transported with passion and furie, either beget new controversies, or do as much as in them lye to make the former immortall. Certaine it is; that some Books of that argument, that have had truth for their center, yet because they have wanted temperance, modesty, & urbanity for their circumference, have to the great prejudice of the truth hardened the Adversarie in their errors; and by their bitter invectives, whetted them not onely to defend themselves, and to offend in the like, but many times (beeing thereby urged to write) to defend the error it selfe to the hurt of many, which otherwise might have vanished away without any contradiction. He that against his conscience doth impugne a knowne trueth, doth it eyther in respect of himselfe, Edition: current; Page: [128] or of others; of himselfe, in that he hath within him a discontented heart; of others, whom for certaine worldly respects he seeketh to please: Discontented he is, either because hee hath not attayned to his ambitious and unjust desires, or for that in the Eye of the state, he for his vices or wickednes hoth justly deserved punishment & disgrace, & therefore doth oppose himselfe against the current of the present to please others, in respect that his credit or maintenance dependeth upon their favour or benevolence. I Know that at this day all Kingdomes and States are governed by Lawes, & that the particular & approved custome of every nation is the most usuall binding & assured Lawe; I deale only with the municipall lawes of England, which I professe, and where of I have been a Student above these 25. yeres: My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his own:) may be instructed: such as have been taught amisse (every man beleeving as he hath been taught) may see and satisfie himselfe with the truth, and such as know and hold the truth (by having so ready & easie a way to the fountaines themselves) may be comforted & confirmed.

Foster’s Case.

(1590) Hilary Term, 32 Elizabeth I In the Court of King’s Bench.

First Published in the Reports, volume 5, page 59a.

Ed.: John Lane swore that Ursula Foster was going to injure him or burn down his house, and he sought a general warrant from Nathaniel Bacon, a justice of the peace, who issued it to Robert Smith, the constable. Smith and several other constables arrested Ursula, and the constables offered to take her to Thomas Farmer, another justice of the peace, to post bond. Foster refused to go, but they took her to him anyway, where she entered Edition: current; Page: [129] a recognizance to appear in court, after which the constables took her to Nathaniel Bacon, where she refused to post assurances of good conduct. She sued for false imprisonment but lost. The King’s Bench found that a constable may take a captive under a general warrant to any available justice.

John Foster and Ursula his wife brought a Writ of false Imprisonment against Robert Smith, and upon the pleading as special verdict, the Case was such; scil.1 That the town of Brancaster is within the Hundred of Smithden, in the County of Norfolk; and that the Defendant was praed’ tempore quo, &c.2 one of the Constables of Brancaster. And that Nathaniel Bacon, Esquire, then one of the Justices of Peace within the said County, made a warrant sealed with his seal directed amongst others to the Constables of Brancaster, reciting that John Lane of Brancaster was in fear of his life, mutilation of his members, and burning of his houses by Ursula the Plaintiff, &c. Vobis, &c. praecipimus quod praed’ Ursulam coram aliquo justiciarior’ nostrorum ad pacem in com’ praedict’ assign’ venire faciat’, seu aliquis vestrám venire faciat’ sufficient’ manucapt’, quod ipsa praedict’ Ursula praefat’ Johann’ Lane damnum & malum aliquod, &c. non faciat, nec fieri procurabit. Et si hoc facere recusaverit, tunc ipsam sic recusantem proxim’ prison’ nostrae in com’ praed’ duci facias, &c. ibidem moratur’ quousque gratis hoc facer’ voluer’, &c.3 By force of which warrant the Defendant did arrest the said Ursula, and that afterwards the Plaintiff and one John Hammond |Edition: Sheppard2003; Page: [59 b] offered them to goe to Thomas Farmor, Esquire, one of the Justices of Peace of the same County, to be bounden to the Queen according to the purport of the said warrant; And that the said Robert Smith did refuse to goe to the said Thomas Farmor upon which the Plaintiffs went with the said John Hammond to the said Thomas Farmor, and there acknowledged a Recognizance to the Queen to appear at the next Sessions to be holden within the Hundred of Smithden (the which was not according to the warrant) and that the Defendant praedict’ tempore quo, &c. by force of Edition: current; Page: [130] the said warrant brought the said Ursula before the said Nathaniel, before whom she refused to find sureties; for which the said Defendant carried the said Ursula to Gaol by force of the said warrant. And in this Case two Points were resolved by Wray, chief Justice, and the whole Court.

1. That upon the said general Warrant scil. Coram aliquo Justiciar’, &c.4 it is at the election of the Constable, who is an Officer and minister of Justice, to carry the party arrested to what Justice he will, for it is more reasonable to give election to the officer, who in presumption of Law is a person indifferent, and sworn to do and execute his Office duly, then to give the election to the Delinquent himself, who by presumption of Law will seek excuses, and perhaps will carry the Constable, being for the most part a poor man, to the farthest part of the County, by reason whereof such Constable would be morenegligent and remiss of such Warrants for fear of travel, and loss of their time; Which Judgment is against the opinion of Fineux, 21 Hen. 7. 20. obiter,5 whereof the reporter maketh a Quaere.6 But it agreeth with the opinion of the Lord Brook in abridging the Case of 21 Hen. 7. tit. Faux Imprisonment, 11. Note Reader, the Law adjudged in the point, which never (as I know) was adjudged before.

2. It was resolved, That after the Officer in the Case above, had brought the party before the Justice, and before him she refused to find sureties, the Officer without a new Warrant or commandment may carry the party to Prison, and that by the words of the said Warrant, Et si hoc facere recusaverint, &c.7 And Wray, Chief Justice, said, That a Justice of Peace may in such Case make a Warrant to bring the party before himself, and the same shall be good and sufficient in Law: For, for the most part, he who maketh the Warrant, hath best knowledge of the matter, and therefore most fit to doe Justice in the Case.

Edition: current; Page: [131]

Cases of By-Laws and Ordinances The Chamberlain of London’s Case.

Ed.: The city of London passed a by-law requiring taxes on all broad-cloth sold there, and required it to be first approved for sale by city officials at Blackwell Hall, with a penalty for non-compliance. The Chamberlain of London brought an action for debt against the merchants who had not paid. The merchants complained that the tax was a usurpation of Parliament’s right to tax, at least over non-City residents, and that the City’s right was not unlimited. The action for debt was removed from the city court to the King’s Bench, where the tax was upheld as a customary regulation of the City of London. In passing, the Court noted that the King may regulate trade, requiring by charter ships to unload only in certain ports.

The Chamberlain of London brought an Action of Debt in London at the Guildhall there against divers persons, &c. And it was grounded upon an Act of Common Council, or Ordinance made by the Mayor, Aldermen, and Commonalty of the City at their common assembly (which they make by custom, and which amongst others is confirmed by divers Acts of Parliament) by which it was ordained, That if any Citizen, freeman, or stranger within the said City, put any Broad cloth to sale within the City of London before it be brought to Blackwell-hall to be viewed and searched, so that it mayappeartobesaleable, and that Hallage1 be paid for the same, scil. 1d. for every cloth, that he shall forfeit for every cloth 6s. 8d. And further it was ordained, For such forfeiture the Chamberlain of London for the time being should have an Action of debt, &c. And because the Defendants had broken the said Ordinance, for the penalty inflicted by the said Ordinance, the Chamberlain of London brought an Action of debt in London and the same was removed by Habeas Corpus2Edition: current; Page: [132] into the King’s Bench. And it was moved that those in London cannot make Laws and Ordinances to binde the King’s Subjects, and principally strangers, for then they shall have as high authority as an Act of Parliament: And 2. The said Ordinance (as it was urged) was against the Law and the freedom and liberty of the Subject, to compel him to bring his Clothes to any one place. 3. The imposit. of 1d. for Hallage was a charge to the Subject, and by the same reason they may impose 1d. they may impose 2d. and so in infinit’:3 |Edition: Sheppard2003; Page: [63 a] And one of the Inner Temple of Counsel with the City moved to have a Procedendo.4 It appeareth by many precedents, That it hath been used within the City of London time out of minde for those of London to make Or dinances and Constitutions for the good order and government of the Citizens, &c. consonant to Law and reason, which they call Acts of Common Council. Also all their Customs are confirmed by divers Acts of Parliament, and all such Ordinances, Constitutions, or By-laws are allowed by the Law, which are made for the true and due execution of the Laws or Statutes of the Realm, or for the well government and order of the Body incorporate. And all others which are contrary or repugnant to the Laws or Statutes of the Realm are void and of no effect: And as to such Ordinances and By-laws, these differences were observed; Inhabitants of a Town without any Custome may make Ordinances or By-laws for the reparation of the Church, or a high way, or any such thing which is for the general good of the publick, and in such Case the greater part shall bind all the rest without any Custom. Vide 44 Edw. 3. 19. But if it be for their own private profit, as for the well ordering of their Common of pasture, or the like, there, without a Custom they cannot make By-laws: And if be a Custom, then the greater part shall not binde the less, if it be not warranted by the Custom. For as Custom creates them, so they ought to be warranted by the Custom Vide 8 Edw. 2. Assise 413. Also Corporations cannot make Ordinances or Constitutions without a Custom, or the King’s Charter, if not for things which concern the Commonwealth, as reparations of Church or common high ways, or the like. Vide 44 Edw. 3. 19. 8 Edw. 2. Assise 413. 21 Edw. 4. 54. 11 Hen. 7. 13. 21 Hen. 7. 20 & 40. 15 Eliz. Dyer 322.

Edition: current; Page: [133]

And as to the Case at Barre many Statutes were made for the true making of woollen Cloth, which is the principal Commodity of this Realm; and to the intent that the said Statutes might be the better executed without any deceit, the said Act of Common Council was made, that they shall be brought to Blackwell-hall, as to a place publick, and known, to the intent they might be searched and viewed, if they were made according to the said Statutes. So the said Ordinance being made for the better keeping and execution of the said Laws, to prevent all frauds and falsities, was good and allowable by the Law. Also the assessing of the said 1d. for Hallage was good, because it was pro bono publico,5 and it was competent and reasonable, having regard to the benefit |Edition: Sheppard2003; Page: [63 b] which the Subject enjoyed by reason of the said Ordinances, and such assessments being for the maintenance of the publick good, and not pro privato lucro,6 were maintainable by the Law; and it was not to be said a burden or charge to the Subject when he reaped a benefit by it. But it is like Pontage, Murage, Toll, and the like, as appearth in 13 Hen. 4. 14. b. in which Cases the summe for reparations of Bridges, Walls, &c. ought to be so reasonable, that the Subject shall have more benefit thereby than charge.

Also the penalty inflicted upon the offender, be he Citizen or stranger, is lawful, the offence being done within the City, and the summe being competent and proportionable to the offence, and without a penalty the Ordinance shall be in vain: for Oderunt peccare mali formidine poenae.7 And the appointment of their Chamberlain, being their publick Officer to bring the Action of Debt was well and allowable by Law; and the Ordinance being according to Law, may be put in execution without any other allowance, notwithstanding the Statute of 19 Hen. 7. cap. 7.

And after great deliberation Wray, chief Justice, by the advice of the other Justices, granted a Procedendo. Vide 2Edw.3.7. John de Brittain’s Case. The King granted by his Charter that all manner of Ships coming to such a Haven laden with Merchandizes, should be unladen at a certain place, and not elsewhere, to the intent he might be better answered his Customs and other duties.

Edition: current; Page: [134]

Clark’s Case.

(1596) Trinity Term, 38 Elizabeth I In the Court of Common Pleas.

First Published in the Reports, volume 5, page 64a.

Ed.: This note case describes an important limit to the Chamberlain’s case, immediately preceding it. A burgess refused to pay tax assessed to pay for civic buildings in the new town of St. Albans and was arrested under the town ordinances. Applying Magna Carta, the Common Pleas held that the town had no authority to inflict imprisonment under a by-law.

In an Action of false Imprisonment brought by Clark against Gape; the Defendant justified the imprisonment, because King Edward the sixth incorporated the town of Saint Alban’s by the name of Mayor, &c. and granted to them to make Ordinances; And shewed, that the Queen appointed the Term to be kept there, and that they with the assent of the Plaintiff and other Burgesses, did assess a summe on every inhabitant for the charges in erecting the Courts there; and ordained, That if any refuse to pay it, that he should be imprisoned, &c. and because the Plaintiff being a Burgess, &c. refused to pay, &c. he as Mayor justified; And it was adjudged no plea, for this Ordinance is against the Statute of Magna Charta, cap. 29. Nullus liber homo imprisonetur;1 which Act hath been confirmed above 30 times, and the Plaintiff’s assent cannot alter the Law in such Case; But it was resolved, that they might have inflicted a reasonable penalty, but not imprisonment, which penalty they might limit to be levied by distress, or by Action of Debt; and the Plaintiff had Judgment.

The Case of Market-Overt.

(1596) Hilary Term, 38 Elizabeth I In the Court of Quarter Sessions.

First Published in the Reports, volume 5, page 83b.

Ed.: This note case presents a holding of the judges of various courts that stolen goods that are sold by a merchant whose trade is generally in the Edition: current; Page: [135] type of goods sold can create good title in a bona fide purchaser, although a sale made after the goods were hidden in a shop or traded in a warehouse would not create good title in the seller. Coke, as Recorder of London, testified to the city custom along these lines.

At the sessions of Newgate now last past, it was resolved by Popham, Chief Justice of England, Anderson, Chief Justice of the Common Pleas, Sir Thomas Egerton, Master of the Rolls, the Attorney General, and the Court, That if Plate be stolen and sold openly in a Scriveners shop on the Market day (as every day is a Market day in London except the Sunday) that this sale shall not change the property, but the party shall have restitution; for a Scriveners shop is not a Market overt for plate: for none will search there for such thing; & sic de similibus, &c.1 But if the sale had been openly in a Goldsmith’s shop in London, so that any one that stood or passed by the shop might see it, there it changeth the property. But if the sale be in the shop of a Goldsmith, or behinde a hanging, or behinde a Cupboard upon which his Plate standeth, so that one that stood or passed by the shop cannot see it, it shall not change the property: So if the sale be not in shop, but in the Ware-house, or other place of the house, it shall not change the property, for that is not in Market overt, and none will search there for his goods. So every shop in London is an open market for such things onely which by the trade of the owner are put there to sale; And when I was Recorder of London, I certified the Custome of London accordingly. Note, Reader, the reason of this case extends to all open Markets in England.

Semayne’s Case.

(1604) Michaelmas Term, 2 James 1 In the Court of King’s Bench.

First Published in the Reports, volume 5, page 91a.

Ed.: Peter Semayne held a house in common with George Beriford, who died, leaving his goods in the house. Semayne also held a statute-staple, a type of bond securing a debt from Beriford. Semayne sought a writ to secure Edition: current; Page: [136] Beriford’s lands and goods in payment of the debt. He gave the writ to the sheriffs of London, who began forfeiture proceedings against Richard Gresham, who had succeeded to Beriford’s interests at the time of Beriford’s death. The sheriffs offered to enter Gresham’s house to seize the goods, which Gresham opposed. In this famous case, the King’s Bench described the privileges of a house owner, who may defend it as his castle and greatest refuge. He even has rights against entry and search by the King’s sheriffs, who may break into a house to make an arrest or serve a warrant but who might commit a trespass if they break in when they do not need. The standards of entry by sheriffs are also discussed. Semayne lost because in this non-felony case, Gresham was legally allowed to bar his own door.

In an Action on the Case by Peter Semayne, Plaintiff, and Richard Gresham, Defendant, the Case was such; The Plaintiff and one George Berisford were Joynt-tenants of a house in Black Friars in London for years. George Berisford acknowledged a Recognizance in the nature of a Statute-Staple to the Plaintiff, and being possessed of divers goods in the said house, died, by which the Defendant was possessed of the house by survivorship, in which the goods continued and remained; The Plaintiff sued process of extent upon the Statute to the Sheriffs of London; The Sheriffs returned the conusor dead, uponwhich the Plaintiff had another Writ to extend all the lands which he had at the time of the Statute acknowledged, or any time after, and all his goods which he had at the day of his death; which Writ the Plaintiff delivered to the Sheriffs of London, and told them that divers goods which were the said George Berisford’s goods at the time of his death were in the said house: And thereupon the Sheriffs by virtue of the said Writ, charged a Jury to make enquiry according to the said writ, and the Sheriff and Jury accesserunt ad domum praedictam ostio domus praedict’ aperto existen’ et bonis praedictis in praedicta domo tunc existen’,1 and they offered to enter the said house, to extend the |Edition: Sheppard2003; Page: [91 b] said goods according to the said Writ; And the Defendant, praemissorum non ignarus,2 intending to disturb the execution, ostio proed’ domus tunc aperto existen’, claudebat Edition: current; Page: [137] contra Vicecom’ & jurator’ praed,’3 by which they could not enter, and extend the said goods, nor the Sheriff seize them, by which he lost the benefit and profit of his Writ: And in this Case these points were resolved.

1. That the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose; and although the life of man is precious and favoured in law; so that although a man kill another in his defence, or kill one per infortuntun’,4 without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law hath of a mans life; But if theeves come to a mans house to rob him, or murder, and the owner or his servants kill any of the theeves in defence of himself and his house, it is no felony, and he shall lose nothing, and therewith agreeth 3 Edw. 3. Coron. 303, & 305. & 26 Ass. pl. 23. So it is holden in 21 Hen. 7. 39. every one may assemble his friends or neighbours to defend his house against violence: But he cannot assemble them to goe with him to the Market or elsewhere to keep him from violence: And the reason of all the same is, because domus sua cuique est tutissimum refugium.5

2. It was resolved, that when any house is recovered by any real Action, or by Ejectione firmae,6 the Sheriff may break the house to deliver possession to the demandent or Plaintiff for the words of the Writ are, Habere facias seisinam,7 or possessionem, &c.8 and after Judgment it is not the house in right and judgment of Law of the tenant or defendant.

3. In all Cases when the King is party, the Sheriff (if the doors be not open) may break the parties house, either to arrest him, or to doe execution of the Kings process, if otherwise he cannot enter. But before he break it, he ought to signify the cause of his coming, and to make request to open doors; and that appeareth by the Statute of Westm. 1. c. 17. (which is but an affirmance of the Common Law) as it hereafter appeareth, for the Law without default in the owner abhorre destruction or breaking of any house which is for the habitation and safety of a man, by which great damage and inconvenience Edition: current; Page: [138] may follow to the party, when no default is in him; for perhaps he doth not know of the process, which, if he had notice of it is presumed that he will obey it, and that appeareth in 18 Edw. 2. Execut. 252 where it is said, That the Kings Officer who cometh to doe execution, &c. may open the doors which are shut, and break them, if he may not have the keys; which proveth, that he ought first to demand them: 17 Edw. 3. 16. J. hurteth R. so as he is in danger of death, J. flieth, and thereupon Hue and Cry is made, J. getteth into the house of T. those who pursue him, if the house be kept and defended with force (which proveth that first request ought |Edition: Sheppard2003; Page: [92 a] to be made) may lawfully break the house of T. for it is at the Kings suit. 27 Ass. p. 66. The Kings Bailiff may distrain for issues in a Sanctuary, 27 (28) Ass. p. 35. By force of a capias9 upon indictment of Trespass the Sheriff may break his house to arrest the party; but in such Case, if he break the house when he may enter without breaking it, (that is, on request, or if he may open the door without breaking) he is a trespasser, 41 Ass. 17. upon issue joyned on a traverse of an Office in Chancery, Venire facias10 was awarded returnable in the Kings Bench, without mentioning non omittas propter aliquam libertatem;11 yet for as much as the King is party, the Writ of itself is non omittas propter aliquam libertatem, 9 Edw. 4. 9. That for felony, or suspicion of felony, the Kings Officer may break the house to apprehend the felon, and that for two reasons: 1. For the Commonwealth, for it is for the Commonwealth to apprehend felons. 2. In every felony the King hath interest, and where the King hath interest there the Writ is non omittas propter aliquam libertatem; and so the liberty orprivilege of the house doth not hold against the King.

4. In all Cases when the door is open the Sheriff may enter the house, and do execution at the suit of any Subject, either of the body, or of the goods; and so may the Lord in such case enter the house to distrain for his rent, or service, 38 Hen. 6. 26. a. 8 Edw. 2. Distr. 21 & 33 Edw. 3. Avow. 256. the Lord may distrain in the house, although he holds lands in which he may distrain. Vide 29 As. 49. But the great question in this Case was, if by force of a Capias or Fieri Facias12 at the suit of the party the Sheriff after request made to open Edition: current; Page: [139] the door, and denial made, may break the Defendants house to doe execution if the door be not opened. And it was objected, That the Sheriff had well do it for divers causes: 1. Because it is by process of Law; and it was said, That it would be granted that a house is not a liberty, for if a Fieri fac. or a Capias be awarded to the Sheriff at the suit of a common person, and that he make a mandate to the Baily of a liberty who hath return of Writs, that nullum dedit responsum13 in this Case another Writ shall issue with non omittas propter aliquam libertatem yet (it will be said on the other side) that he shall not break the defendants house, as he shall doe of another liberty; As in the county of Suffolk there are two liberties, one of S. Edmund Bury, and the other of S. Etheldred of Ely, put case a Capias comes at the suit of A., to the Sheriff of Suffolk to arrest the body of B. the Sheriff maketh a mandate to the Bailiff of the liberty of S. Etheldred, who maketh no answer, in this Case the Plaintiff shall have a Writ of non omittas by force at which he may arrest the Defendant within the liberty of Bury, although that no fault be in him: 2. Admit it be a liberty, the Defendant himself shall not take advantage of a liberty: As |Edition: Sheppard2003; Page: [92 b] if the Bailiff of a liberty be Defendant in any Action, and process of Capias or Fieri facis come to the Sheriff against him, the Sheriff shall execute the process against him, for a liberty is always for the benefit of a stranger to the Action. 3. For necessity the Sheriff shall break the Defendants house after a denial as is aforesaid, for at the Common Law a man shall not have any execution for debt, but only of the Defendants goods. Put case then the Defendant will keep all his goods in his house, and so the Defendant by his own act shall prevent not onely the Plaintiff of his just and true debt, but it shall be also a great imputation to the Law, that there should be so great defect in it, that in such Case the Plaintiff by such shift without any default in him should be barred of his execution. And the Book in 18 Edw. 2. Execute 252. was cited to prove it, where it is said That it is not lawful for any one to disturb the execution of the Kings Officer, who cometh to execute the Kings process; for if a man might stand out in such manner, a man shall never have execution; but there it appeareth (as hath been said) that there ought to be request made before the Sheriff break the house. 4. It was said, that the Sheriff is an Officer of great authority, in whom the law reposeth great trust and confidence, and are of sufficiency to answer all wrongs which shall be done; And they have Edition: current; Page: [140]custodiam Comitatus,14 and therefore it shall not be presumed that they will abuse the house of any one by colour of doing their office in execution of the Kings Writs, against the duty of their office, and their Oath also: But it was resolved, That it is not lawful for the Sheriff (upon request made and denial) at the suit of a common person, to break the Defendants house scil. to execute any process at the suit of any Subject, for thereof would follow great inconvenience that men in the night as in the day should have their houses (which are their Castles) broken by force of which great damage and mischief may follow, for by colour thereof, upon a feigned suit, the house of any man at any time might be broken when the Defendant might be arrested elsewhere, and so men should not be in safety or rest in quiet in their own houses: And although the Sheriff be an Officer of great authority, and trust, yet it appeareth by experience, that the Kings Writs are executed by Bailiffs, persons of little or no value: And it is not to be presumed, that all the substance a man hath is in his house, nor that a man will lose his liberty, which is so inestimable, if he hath sufficient to satisfy his debt. And all the said Books, which prove, that when the process toucheth the King, that the Sheriff may break the house, implies that at the suit of the party, the house may not be broken, otherwise the addition (at the suit of the King) should be vain and frivolous. And with this Resolution agreeth the Book in 9 (13) E. 4. 9. and the express difference there appeareth between the Case of felony, which (as hath been said) concerneth the Commonwealth, and the suit |Edition: Sheppard2003; Page: [93 a] of any other subject, which is for the particular interest of the party, as there it is said in 18 El. 4. 4. a. by Littleton and all his Companions it is resolved, That the Sheriff cannot break the Defendants house by force of a Fieri Facias,15 but he shall be a trespasser by the breaking, and yet the execution which he then doth in the house is good. And it was said, that the said book of 18 Edw. 2. was but a Nota, and not any judicial Judgment, and it doth not appear at whose suit the Case is intended, but it is an observation or collection (as it seemeth) of the Reporter. And if it be of a Quo minus16 or other Action in which the King is party, or is to have benefit, the Book is good Law.

5. It was resolved, That the house of any one is not a Castle or privilege Edition: current; Page: [141] but for himself, and shall not extend to protect any person who flieth to his house, or the goods of any other which are brought and conveyed into his house, to prevent a lawful execution, and to escape the ordinary process of Law; for the privilege of his house extends onely to him and his family, and to his own proper goods, or to those which are lawfully and without fraud or covin there; And therefore in such Cases after denial upon request made, the Sheriff may break the house; and that is proved by the Statute of West. 1. c. 17. by which it is declared, That the Sheriff may break a house or Castle to make Replevin, when the goods of another which he hath distrained are by him conveyed to his house or Castle, to prevent the owner to have a Replevin of his goods; which Act is but an affirmance of the Common Law in such points. But it appeareth there, that before the Sheriff in such Case break the house, that he is to require the goods to be delivered to him; for the words of the Statute are, After that the castle shall be solemnly demanded by the Sheriffs &c.

6. It was resolved, admitting that the Sheriff after denial made may break the house, as the Plaintiffs Councel pretend he may, then it followeth that he hath not done his duty, for it doth not appear, that he made any request to open the door of the house. Also the Defendant, as this Case is, hath done that which he may well doe by the Law, scil. to shut the door of his own house.

Lastly, the general allegation, praemissorum non ignarus,17 was not sufficient in this Case where the notice of the premises is so material; but in this cause it ought have been certainly, and directly alledged, for without notice of the process of the Law, and of the coming of the Sheriff with the Jury to execute it, the shutting of the door of his own house was lawful. And Judgment was given against the Plaintiff.

Rooke’s Case.

(1598) Hilary Term, 40 Elizabeth I In the Court of Common Pleas.

First Published in the Reports, volume 5, page 99b.

Ed.: The Commissioners of Sewers assessed Carter a fee of 8s for every acre he had adjoining the River Thames, to pay for maintaining the bank from Edition: current; Page: [142] collapsing and causing floods. They assessed him because there was an ancient prescriptive obligation of the holder of his lands to maintain the bank, but there were many landowners whose lands would be flooded, from whom the commissioners did not assess any fees at all. Coke asserts that Justice Walmsley in the Common Pleas held even though the prescription existed, the statute required that the commissioners should have assessed the costs to everyone who benefitted from the flood prevention, not just the bank-owner. This case is one of the earliest examples of judicial review of an administrative act and often thought to be a foundation of modern administrative law. See also Case of the Isle of Ely, p. 378.

In Replevin in the Common Pleas by Rooke against Withers; The Defendant justified the taking by authority of Commission of Sewers directed to B. S. and others; to survey all walls (prout1 in the Commission) in the River of Thames, in the Country of Kent and Essex, because that one Carter, &c. was assessed to every acre for repairing of a Bank, &c. for the not-paiment of which he took the distress; To which the Plaintiff replied, Of his ownwrong, without such cause. And the Jurors found the Commission and the Statutes of 6 Hen. 6. cap. 5. & 23 Hen. 8. cap. 5. And that the Commissioners did impanel a Jury to inquire of defaults, who presented that 7 acres of meadow in which the distress was taken, was next adjoining to the River; and that the bank of the River was adjoining to the said 7 acres, for which they taxed Carter to pay 8s. for every acre: And the Jury further found, that the occupiers of the said 7 acres have used always to repair the said bank, sometimes voluntarily, and sometimes by presentment. And further that divers other persons had lands to the quantity of 800 acres within the same level, and subject to drowning, if the said bank be not repaired: And if this assessment of the owner of the land next adjoining onely, without any assessment of the other who had lands subject to the like danger of drowning, was lawful or not, was the Question. And in this Case three Points were resolved.

1. That the finding of the repairing, &c. by the occupiers of the said 7 acres was not material, because the occupiers might be tenants at will, or other Edition: current; Page: [143] particular tenants, who by their Act cannot binde him who hath the inheritance.

2. That the Commissioners ought to tax all who are in danger of being endamaged by the not repairing equally, and not he who has the land next adjoining to the River onely; for the statute of 6 Hen. 6. cap. 5. in which |Edition: Sheppard2003; Page: [100 a] the Commission of Sewers is formed and specified, hath precise words in the same Commission, That no person of any estate or condition shall be spared. Ita quod aliquibus tenentibus terrarum sive tenementorum, &c. diviti vel pauperi, vel alteri cujuscunque conditionis, statûs, vel dignitat’ fuerit, qui defensionem, commodum, & salvationem per praed’ Wallias, fossata, guttera, pontes, calceta, & gurgites, &c. habent vel habere poterint nullatenus parcatur in hac parte.2 And if the Law shall be otherwise, inconvenience may follow, for it may be that the rage and force of the water shall be so great, that the value of the land adjoining will not serve to make the banks, And therefore the Statutes will have all which are in danger and who are to take commodity by the making of the banks, to be contributory; for qui sentit commodum sentire debet & onus:3 and the said Statutes require equality, which well agreeth with the rule of Equity: see the Case of Bankrupts in the second Part of my Reports. Et vide 35 Hen. 8. Br. tit. Testam. 19. 4 Edw. 3. Assise 178. 11 Hen. 7. 12. 29 Edw. 3. 39. & Sir William Herbert’s Case in the third Part of my Reports; Cases of equality grounded upon reason and equity, Ipsae etenem leges cupiunt ut jure regantur;4 And notwithstanding the said words of the said Commission give authority to the Commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and Law. For discretion is a science or understanding to discern between falsity and truth, between right and wrong, and between shadows and substance, between equity and colourable glosses and pretences, and not to doe according to their wills and private affections; for as one saith, Talis discretio discretionem confundit.5 And Walmesley, Justice held, and it was not denied by any, That if the owner of the land were bound by prescription to repair the River bank, Edition: current; Page: [144] that yet upon such Commission awarded, the Commissioners ought not to charge him onely, but ought to taxe all who had land in danger: And to this purpose the Statutes were made; for otherwise it might be that all the land shall be drowned before that one person onely could repair the bank, and that appeareth by the words of the Statutes: for which cause Judgment was given for the Plaintiff.

Pinnel’s Case.

Ed.: Cole owed £8 10s to Pinnel, and paid £5 2s. 2d. Cole claimed Pinnel accepted the lesser amount in satisfaction of the whole debt. Pinnel sued. The court held that, although a debtor can choose the terms of repayment, and the debt may be satisfied by something of value like a horse, a payment for a lesser amount cannot satisfy the debt.

Pinnel brought an Action of Debt upon an Obligation against Cole of 16 l. for the paiment of 8 l. 10 s. the 11 day of Nov. 1600. The Defendant pleaded, that he at the instance of the Plaintiff, before the said day, scil. 1 Octob. 44. apud West solvit querenti he paid to the Plaintiff, 5l. 2s. 2d. quas quidem 5l. 2s. 2d.,1 the Plaintiff accepted in full satisfaction of the 8 l. 10 s. And it was resolved by the whole Court, That paiment of a lesser summe in satisfaction of a greater, cannot be any satisfaction for the whole, because it appeareth to the Judges that by no possibility, a lesser summe can be a satisfaction to the Plaintiff for a greater summe: But the gift of a Horse, Hawk, &c. in satisfaction is good. For it shall be intended that a Horse, Hawk, &c. shall be more beneficial to the Plaintiff than the money in respect of some circumstance, or otherwise the Plaintiff would not have accepted of it in satisfaction. But when the whole summe is due, by no intendment the acceptance of parcel can be a satisfaction to the Plaintiff: But in the Case at Bar it was resolved, that the paiment and acceptance of parcel before the day in satisfaction of the whole, Edition: current; Page: [145] shall be a good satisfaction in regard of circumstance of time; for peradventure parcel of it before the day, shall be more beneficial to him than the whole at the day, and the value of the satisfaction is not material: So if I be bounden in 20 l. to pay you 10 l. at Westminster and you request me to pay you 5 l. at the day at York, and you will accept it in full satisfaction of the whole 10 l. it is a good satisfaction |Edition: Sheppard2003; Page: [117 b] for the whole: for the expenses to pay it at York, is sufficient satisfaction: But in this Case the Plaintiff had Judgment for the insufficient pleading; for he doth not plead that he had payed the 5 l. 2 s. 2 d. in full satisfaction (as by the Law he ought) but pleaded the paiment of part generally; and that the Plaintiff had accepted of it in full satisfaction. And always the manner of tender and of the paiment, shall be directed by him who made the tender or paiment, and not by him who accepteth it. And for this cause Judgment was given for the Plaintiff.

See Reader 36 Hen. 6. Barre 37. in debt upon an Obligation of 10 l. the defendant pleaded, that one F. was bound by the said deed with him, and each in the whole, and that the Plaintiff had made an acquittance to F. bearing date before the obligation, and delivered after, by which acquittance he did acknowledge himself to be paid 20 s. in full satisfaction of the 10 l. And it was adjudged a good barre; for if a man acknowledge himself to be satisfied by deed, it is a good barre, without any thing received. Vide 12 Rich. 2. Barre 243. 26 Hen. 6. Barre 37. 10 Hen. 7, &c.

|Edition: Sheppard2003; Page: [125 a] The Case de Libellis Famosis.

(1605) Easter Term, 3 James I In the Court of Star Chamber.

First Published in the Reports, volume 5, page 125a.

Ed.: Coke, as Attorney General, prosecuted in the Star Chamber the publisher of poems making fun of two Archbishops of Canterbury.Thisopinion delineates the standards for a libel. A person may libel another person by harming their reputation, even by saying things that are true, whether the person is a private or public figure, and whether the person is dead or alive. A libeller may be punished by fine, imprisonment, or the amputation of the ears. See also the Lord Cromwell’s case, at p. 105 and Lamb’s case, p. 313.

Edition: current; Page: [146]

In the Case of L. P. in the Starre-chamber this Term, against whom the Attorney General proceeded ore tenus1 on his own confession, for composing and publishing an infamous Libel in verse, by which John Archbishop of Canterbury (who was a Prelate of singular piety, gravity, and learning, now dead) by circumlocutions and descriptions, and not in express terms; and Richard Bishop of Canterbury who now is, were traduced and scandalized: In which these Points were resolved:

1. That every Libel which is called famosus Libellus, seuinfamatoriascriptura,2 is made either against a private man, or against a Magistrate or publick person. If it be against a private man it deserveth a severe punishment, for although the Libel be made against one, yet it inciteth all those of the same family, kindred, or society to revenge, and so may be the cause of per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience: if it be against a Magistrate, or other publicperson, it is a greater offence; for it concerneth not onely the breach of the peace, but also the scandal of government; for what greater scandal of government can there be than to have corrupt or wicked Magistrates to be appointed and constituted by the King to govern his Subjects under him? And greater imputation to the State cannot be, than to suffer such corrupt men to sit in the sacred seat of Justice, or to have any medling in or concerning the administration of Justice.

2. Although the private man or Magistrate be dead at the time of the making of the Libel, yet it is punishable for in the one Case it stirreth up others of the same family, blood, or society to revenge, and to breach the peace and in the other the Libeller doth traduce and slander the State and government, which dieth not.

3. A Libeller (who is called famosus defamator) shall be punished either by indictment at the Common Law, or by Bill, if he deny it, or ore tenus upon his confession |Edition: Sheppard2003; Page: [125 b] in the Starre-chamber, and according to the quality of the offence he may be punished by fine or imprisonment, and if the Case be exorbitant, by Pillory and loss of his Ears.

4. It is not material whether the Libel be true, or whether the party against Edition: current; Page: [147] whom the Libel is made, be of good or ill fame; for in a setled state of Government the party grieved ought to complain for every injury done him in an ordinary course of Law, and not by any means to revenge himself, either by the odious course of libelling, or otherwise: He who killeth a man with his sword in fight is a great offender, but he is a greater offender who poisoneth another, for in the one case he who is the party assaulted may defend himself, and knoweth his adversary, and may endeavour to prevent it: But poisoning may be done so secret that none can defend himself against it; for which cause the offence is the more grievous, because the offender cannot easily be known; And of such nature is libelling, it is secret, and robbeth a man of his good name, which ought to be more precious to him than his life, & difficillimum est invenire authorem infamatoriae scripturae;3 because that when the offender is known, he ought to be severely punished. Every infamous libel, aut est in scriptis, aut sine scriptis;4 a scandalous libel in scriptis5 when an Epigram, Rhime, or other writing is composed or published to the scandal or contumely of another, by which his fame and dignity may be prejudiced. And such libel may be published, 1. Verbis aut cantilenis:6 As where it is maliciously repeated or sung in the presence of others. 2. Traditione,7 when the libel or copy of it is delivered over to scandalize the party. Famosus libellus sine scriptis8 may be, 1. Picturis, as to paint the party in any shameful and ignominious manner. 2. Signis, as to fix a Gallows, or other reproachful and ignominious signs at the parties door or elsewhere. And it was resolved, Mich. 43 & 44 Eliz. in the Starre-chamber in Halliwood’s Case, That if anyone finds a Libel (and would keep himself out of danger), if it be composed against a private man, the finder either may burn it, or presently deliver it to a Magistrate: But if it concerns a Magistrate, or other public person, the finder of it ought presently to deliver it to a Magistrate, to the Intent that by examination and industry, the Author may be found out and punished. And libelling and calumniation is an offence against the Law of God. For Leviticus 17, Non facias calumniam proximo. Exod. 22 ver. 28, Principi populi tui non maledices. Ecclesiastes 10, In cogitatione |Edition: Sheppard2003; Page: [126 a]tua Edition: current; Page: [148] ne detrahas Regi, nec in secreto cubiculi tui diviti maledices, quia volucres coeli portabunt vocem tuam, & qui habet pennas annuntiabit sententiam. Psal. 69. 13, Adversus me loquebantur qui sedebant in porta, & in me psallebant qui bibebant vinum. Job. 30. ver. 7. & 8, Filii stultorum & ignobilium, & in terra penitus non parentes, nunc in eorum canticum versus sum, & factus sum eis in proverbium.9 And it was observed, that Job, who was the Mirrour of patience, as appeareth by his words, became quodammodo10 impatient when Libels were made of him; And therefore it appeareth of what force they are to provoke impatience and contention. And there are certain marks by which a Libeller may be known: Quia tria sequuntur defamatorem famosum:11 1. Pravitatis incrementum, increase of lewdness: 2. Bursae decrementum, decrease of money, and beggary: 3. Conscientiae detrimentum, shipwreck of conscience.

Edition: current; Page: [149]

Part Six of the Reports

The Sixth Part of Coke’s Reports was published in 1607. It was originally entitled Le Size Part Des Reportes Del Edw. Coke Chivalier, Chief Justice del Common Bank. Des Divers Resolutions & Judgments dones sur solemne Arguments, & avec grand deliberations & conferences des tres-reverend Judges & Sages de la Ley, de Cases en Ley queux ne sueront unques resolve ou adjudges par devant: Et les Raisons & Causes des dits Resolutions & Judgments. Pulblies en le cinq’ An de treshuat & tres-illustre Jacques Roy Deengleterre, France & Ireland, & de Escosse le 41, le Fountain de tout Pietie & Justice, & la vie de la Ley. In English, The Sixth Part of the Reports of Sr. Edward Coke, Knight, Lord Chief Justice of Common Pleas, of divers Resolutions and Judgments given with great deliberation, by in matters of great importance & consequence by the reverend Judges and Sages of the Law; together with the reasons and causes of their Resolutions and Judgements. Published in the fifth yeare of the most beloved and most illustrious King James, of England, France and Ireland and of Scotland the 41, the Fountain of all piety and Justice, and the life of the Law. The cases in this part cover a wide range of topics without quite the organization of the earlier volumes. Part Six includes cases on the maintenance of wards (infants or others under the protection of the king), feudal obligations, the rights of nobility, the powers of judges, procedural bars to repeat litigation, the interests in land to protect from the waste of it by others, as well as issues regarding estates and future interests.

Epigrams from the title page:

(Preface) To The Reader.

Since the Publishing of the Fifth Part of my Reports, a good Student of the Common Laws desired to be satisfied in one special Point in my Epistle to the second Part of my Reports,2 where I affirmed, That if the ancient Laws of this noble Island, had not excelled all others (speaking of humane) it could not be but some of the several Conquerors and Governors thereof, that is to say, the Romans, Saxons, Danes or Normans; and especially the Romans, (who as they justly may) do boast of their Civil Laws, would (as every of them might) have altered or changed the same. And (saith he) some of another Profession are not perswaded, that the Common Laws of England are of so great Antiquity, as there superlatively is spoken. True it is, that the said Period was mine own Opinion, but not out of mine own Head; for it is the Judgment of that most Reverend and Honourable Judge, Sir John Fortescue Knight, Chief Justice of England in the Reign of King Henry the Sixth; who (besides his profound knowledge in the Law, being also an excellent Antiquary) in his Book intituled, De Politica administratione & Legibus Civilibus florentissimi Regni Angliae Commentarius,3cap. 17. saith thus:4The Realm of England was first inhabited of the Britans, next after them the Romans had the Rule of the Land, and then again the Britans possessed it; after whom the Saxons invaded it, who changing the Name thereof, did for Britain, call it England: after them, for a certain time, the Danes had the Dominion of the Realm, and then Saxons again, but last of all the Normans subdued it, whose Descent continueth in the Government of the Kingdom at this present. And in all the times of these several Nations, and of their Kings, this Realm was still ruled with the self same Customs that it is now governed withal; which if they had not been right good, some of these Kings, moved either with Justice, or with Reason or Affection, would have changed them, or else altogether abolish them, and especially the Romans, who did judge all the rest of the World by their own Laws. Likewise would other of the aforesaid Kings have Edition: current; Page: [151] done, which by the Sword only possessing the Realm of England, might by the like Power and Authority have extinguished the Laws thereof. And touching the Antiquity of the same, neither are the Roman Civil Laws, by so long continuance of ancient times confirmed; nor yet the Laws of the Venetians, which above all other are reported to be of most Antiquity, forasmuch as their Island in the beginning of the Britans was not then inhabited, as Rome then also unbuilded, neither the Laws of any Nation of the World which worshippeth God, are of so old and ancient years; whereof the contrary is not to be said nor thought, but that the English Customs are very good, yea of all other the very best.

And albeit, I had so good a Warrant for the said Assertion (for every Man that writes ought to be so careful of setting down truth, as if the Credit of his whole Work consisted upon the certainty of every particular period) yet was I right glad to hear of any exception, to the end that such as were not perswaded, might either be rightly instructed, and the Truth confirmed; or that I might upon true grounds be converted and the Error reformed: I desired that they would propose some Particulars, as many as they would (for Generalities never bring any thing to a conclusion.) At length (for this was remembred when I had almost forgotten it) their great desire was to see some Proofs, that the Common Law in these four particular Cases was before the Conquest, as now it is.

¶ First, That the Queen, being Wife to a King Regnant, was a person sole by the Common Law to sue and be sued, to give and take, &c. solely without the King.5

¶ Secondly, That a Man seised of Lands in Fee-simple, shall forfeit his Lands and Goods by Attainder of Felony by Outlawry, and that thereby his Heirs should be disinherited.

¶ Thirdly, That a Woman being attainted of Petty Treason, should be burnt.

¶ Fourthly, Whether the ancient Laws of England did permit any Appeal to Rome in Causes Spiritual or Ecclesiastical.

I had no sooner seen these Questions, but instantly I found direct and demonstrative Answers to the same. For the first, behold an ancient Charter made long before the Conquest, which followeth in these Words.

Edition: current; Page: [152]

Our Lord Jesus Christ reigning for ever. I Aethelswith6 Queen of the Mercians by Gods Grant, with the Consent of my Ealdermen, will give by Grant to Cuthwolph my most faithful Servitor, a certain piece of Land, being part of my peculiar power (that is to say) a piece of Land of fifteen Manses, in a place which is called Laking, for his Obedience, and payable Mony in this manner, that is to say, a thousand five hundred Shillings of Silver and Gold, or fifteen hundred Sicles, that he may have, possess and enjoy at his pleasure, as long as he liveth; and after his end and limit of his days, he may leave it to whomsoever he will, for everlasting Power and perpetual Inheritance. And this my Donation is covenanted in the year of our Lords Incarnation DCCCLXVIII. the first Indiction. And we do charge all Secular Powers, in the Name of God the Father, the Son and the Holy Ghost, to observe the foresaid inviolate. These Witnesses subscribing and consenting thereunto, whose Names here recited are under-written. I Ethelred King of the West-Saxons have consented and subscribed. I Burghred King of the Mercians have consented and subscribed. I Aethelswitth Queen, have consented and subscribed, &c.

I have here set down another Charter of Record made also long before the Conquest, de verbo in verbum,7 for a direct Answer to the second.

I Ethelred by Gods Providence Emperor of all Albion, do grant to my welbeloved Servitor, whose Nobility of Parentage hath given Ulfric for Name, for the faithful Service wherewith he hath courteously served me, a certain parcel of Land, that is to say, two Manses and an half, in a place where the Inhabitants call Aet Dunmalton, in perpetual Inheritance, that he may well enjoy and prosperously possess the same, as long as he is seen to run the race of this Life with vital breath, and may leave the same to what Successor he please, after his departure from this transitory Life. Let the said Land situated in a certain Common be free from all wordly impediment, with all which are known to belong to the said place, as well in great matters as in small, in Fields, Pastures, Meadows, Woods; Expedition, building of Bridge and Castle being excepted. Such as shall diminish and violate this my Gift (which I wish may be far from the Minds of all faithful) let them have their part with them, of whom it shall be resounded, Depart from me ye Edition: current; Page: [153] cursed into everlasting fire, which is prepared for Sathan and his Angels, unless they do make amends by lawful satisfaction, obtaining Pardon by due Penance towards God. Whereas that which Mans Memory doth overpass, the diligent search of writing doth preserve. This is to be notified to the Readers, that the said Land came to the disposition of my right, by the crime of a certain Mans unspeakable Presumption, wherewith boldly and feloniously he hath not abhorred to incumber himself, which Man his Parents named Ethelsig, albeit he hath discredited his Name by a foul fault. And by me (as is aforesaid) the said Land is bestowed upon my reverend Servitor. The manner of whose fault we thought good to note here in English.

This was the Land forfeited at Dunmalton,8 that Ethelsig forfeited to King Ethelreds Hands. It was so then, that he stole Ethelwins Swine, who was Son to Ethelmere Ealderman. Then his Man did ride to him, and took the things stoln out of Ethelsigs House; but he burst out to the Woods, and Men outlawed him, and Men brought to King Ethelred his Lands and his Goods. Then gave he that Land to his servant Hawes for a perpetual Inheritance. And Wulfric, Son to Wulfrun, after had it of him in exchange for other Lands that pleased him better; and this was with the Kings leave, and with the Testimony of his Wise Men.

This Donation was made in the year from the Incarnation of our Lord DCCCCXCV the eighth Indiction, in the seventeenth year of the said King. This Charter was witten with the consent of them whose Names are here underwritten. I Ethelred King of Englishmen have constantly consented and ratified this Donation under the Sign of the Holy Cross. I Alfrick by Gods Grace elected unto the Archbishoprick of Canterbury, have established this Gift with the Sign of the Cross, &c.

Touching the Third,9 Caesar in his Commentaries, Lib. 6. p. 68. (who wrote before the Incarnation of Christ above 1600 years past) affirmeth, That if the Wife be suspected of the death of her Husband, Es si compertum est, igni, &c. interficiunt:10 that is, and if she be found guilty of the death of her Husband, which is Petty-Treason, the Wife is burnt to death, as she is (in that Case) at this day.

Edition: current; Page: [154]

For the last, by an Act of Parliament holden in the tenth year of King Henry the Second, which was in Anno Domini 1164. it is enacted as followeth.

As concerning Appellations if any shall arise from the Archdeacon, they must proceed to the Bishop, from the Bishop to the Archbishop;11 and if the Archbishop do fail in doing Justice, it must lastly come to the King, that by his Precept the Controversie may be ended in the Archbishops Court, so that there ought not to be any proceeding farther without assent of the King. And that this amongst many other might not tast of Innovation, the Record saith, This Recognition or Record was made of a certain part of the Customs and Liberties of the Predecessors of the King, to wit, of King Henry his Grandfather, and of other Kings, which ought to be observed in the Kingdom, and held of all for the Dissentions and Discords often arising between the Clergy and our Lord the Kings Justices, and the Peers of the Realm; and all the Archbishops, Bishops, Abbots, Priors, Clergy, with the Earls, Barons, and all the Nobles, &c. have sworn and assuredly promised in the Word of Truth, with one consent to keep and observe the said Recognition toward the King and his Heirs in good sooth without evil meaning for ever.

But herein I perswaded my self, that every Man that had advisedly and with an equal mind read Caudries Case, published in my last Reports, would therewith in this point have been satisfied. And I must freely acknowledge, that I never expected, that any Divine would have attempted to have made such an Answer to that Case, as lately hath been published for two causes. First, for that it is (exceeding all bounds of Truth and Charity) full of Maledictions and Calumniations, nothing pertinent to the state of the Question. It becometh not Divines to be of fiery and Salamandrine Spirits; neither arebitter Invectives fomed out of an hot mouth, ever fretting it self upon the BitofD is contentment (the Seeds of Hatred, and means of making Controverversies immortal) beseeming the Lips of any man of that profession. Sure I am, that neither Quicksands having no stedfast ground, nor Quicksets of Brambles or Briers, are fit either for foundations, or for fences or defences, especially for him that usurpeth the sublime and broad spreading Name of The Catholick Divine.12 He that will make any Answer out of Conscience and Charity, to persuade the adverse Party, should repeat his Authorities, his Arguments, his Reasons and Categorically and Christianly answer the Matter ad idem,13 without any Invective Edition: current; Page: [155] against the person, whom his end is (or should be) to convert to his Opinion. Young Sophisters are wont to rail (and by thatmeanskeepthemselves from a Nonplus) when they are not able to answer the Argument inforced against them. Secondly, for that (as I published in my Epistle to the Reader) I dealt only with the Municipal Laws of England, as a subject proper to my Profession.

Expect not from me (good Reader) any reply at all, for I will not answer unto his Invectives, and I cannot make any reply at all to any part of his Discourse. True it is, that Calumniations be great Motives of Revenge, and consequently of breach of Charity, and of Gods Commandment: And therefore David prayed, Redime me a calumniis hominum, ut custodiam mandata tua.14 But it is far unbeseeming a man of my Vocation, Convitium convitio regerere:15 For that were Lutum luto purgare.16 And God hath left a president of a Judge, (who also was the first Reporter of Law) that he17 was Mitissimus super omnes homines qui morantur in terra;18 whose Example all Judges(though they be provoked every day) ought as much as they can to imitate and follow. This only will I say in this Cause, to him and of him, Ille didicit maledicere, & ego maledicta contemnere.19 The cause that I cannot reply is, for that I have only reported the Text, and as it were the very Voice of the ancient Laws of this Realm proved and approved in all successions of Ages, as well by universal consent in Parliaments, as by the Judgments and Resolutions of the Reverend Judges and Sages of the Common Laws, in their Judicial proceeding, which they gave upon their Oaths and Consciences.

I quoted the Year, the Leaf, the Chapter and other certain References for the ready finding thereof. And I could have added more, if the Report of that Case (being very long, as it is) should not have been drawn to an extraordinary Prolixity. But when I looked into the Book, ever expecting some Answer to the Matter; in the end I found the Author utterly ignorant (but exceeding bold, as commonly those qualities concur) in the Laws of the Realm, the only subject of the Matter in hand, but could not find in all the Book any Authority Edition: current; Page: [156] out of the Books of the Common Laws of this Realm, Acts of Parliament, or any legal and judicial Records quoted or cited by him for the Maintenance of any of his Opinions or Conceits: Whereupon (as in Justice I ought) I had Judgment given for me; upon a Nihil dicit,20 and therefore cannot make any replication. For his Divinity and Histories cited by him, only published in the said Book Ad faciendum populum,21 (but how truly and sincerely his own Conscience knowing, he thought it best for the salving of his Credit, to conceal his Name) I will not answer, for then, I should follow him in his Error, and depart from the state of the question, whose only subject is the Municipal Laws of this Realm.

I have (good Reader) brought this sixth Work to a Conclusion, and published it for thy private Instruction, for the publick good and quiet of many, and for preventing of Danger, the Daughter of Error. I confess that Englishmens Actions have been renowned in the Ear of the whole World, but far better done than they have been told, for want of a good History; and their Laws most excellent, but far better than they seem to any Eye (unless he can look in the visial line) for want of good Stile, and fair falling Sentences (which never were at so high a price as now they bear) but wise Men will embrace the secrets of Skill, though they be written with an evil Pen, and will not refuse precious Jewels, though they be brought in a plain and homely receptacle.

The reporting of particular Cases or Examples is the most perspicuous course of teaching, the right rule and reason of the Law; for so did Almighty God himself, when he delivered by Moses his Judicial Laws, Exemplis docuit pro Legibus,22 as it appeareth in Exodus, Leviticus, Numeri and Deuteronomi. And the Glossographers, to illustrate the Rule of the Civil Law, do oftenreduce the Rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader, that he would not read (and as it were swallow) too much at once; for greedy Appetites are not of the best digestion; the whole is to be attained to by parts, and Nature (which is the best Guide) maketh no leap, Natura non facit saltum.23 And true it is that Seneca saith, (as in another place I have said) Quo Edition: current; Page: [157] plus recipit animus, hoc se magis laxat.24 The Mind, the more it suddenly receiveth, the more it loseth, and freeth it self. A cursory and tumultuary reading doth ever make a confused Memory, a troubled Utterance and an uncertain Judgment. If these or any other of my Works may in any sort (by the goodness of Almighty God, who hath enabled me hereunto) tend to some discharge of that great Obligation of duty wherein I am bound to my Profession, and give directions for the establishment of Inheritances, Possessions and Interests in peace and quietness, I shall reap some fruits of the Tree of Life; for my desire shall be accomplished, and I shall receive sufficient Recompence for all my Labours; for their true and final end shall be effected.

Jentleman’s Case.

(Between Crosby and Jentleman)

(1583) Easter Term, 25 Elizabeth I

In the Court of King’s Bench.

First Published in the Reports, volume 6, page 11a.

Ed.: In this opinion, which foreshadows many of Coke’s arguments with James I, the judges of the King’s Bench consider when various officials are Judges, who are appointed by writ, by the king, or by statute, to hear certain causes of action, or who are suiters seeking a writ of right, to which they are automatically entitled, or a writ of justicies, which require a sheriff to hear a dispute over a debt. The King cannot abolish courts of the common law but may create new courts, and appoint Judges to courts, but once he has made the appointment, the judge ought to determine matters in the court.

It is to be observed, that the words of a Writ of Right directed to the Lord of a Mannor are, Pracipimus tibi, quod plenum rectum teneas A de B de uno Edition: current; Page: [158] messuagio, &c.1 And the words of a Writ of Justicies are, Rex vic. S. Salutem. Praec. tibi quod Justicies A. quod juste & sine dilatione reddat2 B 20l. &c. And so of other Writs which are Vicountiel. So the Writ of Droit close is directed to the Lord of the Mannor; Pracipimus tibi quod secundum consuetudinem manerii, &c. plenum rectum teneas, &c. de uno messuagio.3 And the Writs are in the same words when they are directed to the Bailifs of a Mannor. And upon the words aforesaid it was objected, that in such cases the Lord, or the Baylifs, or the Sherif, are Judges, for they have authority by the Kings Writ, and the Writs are directed to them, and not to the suters; and therefore it was said, That the difference is, when the plea is in ancient |Edition: Sheppard2003; Page: [11 b] Demesne, Court Baron, or County Court without writ, there the suters are Judges; but when the writ is directed to the Lord, or Baylifs, or Sherif, by which they are commanded to doe Right and Justice to the parties, there they are Judges. Also it was said, that by force of Justicies4 a plea may be holden in the Countie above forty shillings, and therefore it is reason that Judge should be appointed than the suters, who of common right are Judges of small things under forty shillings. And to this purpose are some opinions in temp.5 Edw. 1. tit. Det. 177. 21 Edw. 4. 66. b. & 21 Hen. 6. tit. Retorne. 17. 21 Hen. 6. 34. a. 44 Edw. 3. 10. where Finchden holdeth, where the admeasurement of power6 is made before the Sherif, the Sherif is Judge. But upon consideration of all the Books it was resolved, that in none of the said Cases, the Lord of a Mannor, or the Baylifs, or Sherif, are Judges; but bee the plea holden by writ, or without writ the suters are Judges. And the reason why the writ shall bee directed to the Lord, or Sherif, &c. is, because the Court Baron is the Lords Court, and the County Court is the Sherif’s Court; and therefore it is great reason the writ be directed to him to whom the Court doth belong, to the end he see two things performed. 1. To hold his Courts that Justice and Right be therein done to the parties. 2. That he answered the profits of his Court which belong to Edition: current; Page: [159] him. But in case where they hold plea by force of the Kings writ, it doth not change the nature and jurisdiction of the Court: For as these without writs are not Courts of Record, so when the plea is holden by writ, the Courts are of the same nature; for upon a Judgement given in both cases, a writ of false Judgement lyeth, and not a writ of Error: But if the writ which of record should constitute a new Judge, viz. the Lord in the one case, and the Sherif &c. in the other, then the authority of the Judge being by the Kings Writ, which is of Record, the Court as to this purpose shall be also of record, quod est perspicue falsum.7 For without question, as it appeareth by F. N. B. and all the books, a writ of false Judgement lyeth in such Case, although the plea be held by writ: Also the Kings writ cannot alter the jurisdiction of the Court Baron, County, Hundred, &c. which are all Courts at the Common Law, and have Judges authorised and appointed in them by the Law; and therefore all things determinable in those Courts ought to be determined by the Judges of the same Courts; but it is true, the King may create a new Court, and appoint new Judges in it; but after the Court is established and created, the Judges of the Court ought to determine the matters in the Court. And therefore neither the Lord of ancient demesne, nor of a Court Baron, nor the Sherif in the County Court, when the |Edition: Sheppard2003; Page: [12 a] plea is holden by writ of Right, Justicies, Admeasurement, &c. are Judges, but the Suters, who are by the Common Law are the Judges of the Court. And therewith agree the books in 34 Hen. 6. 35. 39 Hen. 6. 5. a. 7 Edw. 4. 23. a. 6 Edw. 4. 3. b. 12 Hen. 7. 16, &c. And observe well the words of the writ in the Register, 10. b. Rex sectatoribus, Cur. J. Manerii de G. quae est de antiquo dominico Coronae Angliae, ut dicitur, Salutem. Cum secundum legem & consuetudinem infra maneria, quae hujusmodi antiquo dominico Coronae Angliae hactenus existunt, ut dicitur, usitat’ in placitis in Curia eorundem Maneriorum pendentibus, cum ad judicium inde reddendum sit placitatum, sectatores hujusmodi curiae ad judicia in placitis inde reddend. licite procedere debeant & consueverunt totis temporibus retroactis.8 And there it Edition: current; Page: [160] appeareth, that the plea did there depend by a writ of Droit close, &c. Vobis mandamus, &c. ad judicium inde reddendum cum omni celeritate procedatis, &c.9 by which it appeareth, that although the plea is holden by writ, yet the suters are the only Judges. It appeareth also by the said books, That in a Hundred Court, the suters are judges, and so the Law is well resolved in a Case, wherein there was variance in opinions in our books. But in some case, the sheriff is made Judge by Parliament, as in Redisseisin, by the Statute of Merton, cap. 3. And all his proceeding, by force of that Act, is of record; and a writ of Error lyeth of a judgement given against him, &c. vide 44 Edw. 3. 10. In a Court of Pipowders the Steward is Judge, 6 Hen. 4. 3. acc. 7 Edw. 4. 23. a. In the Leet the Steward, and in the torn the Sheriff judge, 10 Hen. 6, 7. 7 Hen. 6. 12. 12 Hen. 7. 15. In the Court of Marshalsea, the steward and marshal of the King’s house are Judges, 19 Edw. 4. 8. b. F. N. B. 241. B. 20 Edw. 4. 16. b. 7 Hen. 6. 30. 4 Hen. 6. 8. Artic. super Chartas, cap. 3.

Edition: current; Page: [161]

Part Seven of the Reports

The Seventh Part of Coke’s Reports was published in 1608. It was originally entitled La sept part des reports Sr. Edw. Coke chivaler, chiefe Justice del Common Banke: des divers resolutions & judgements done sur solemne arguments & avec grand deliberation & conference des tresreverend judges & sages de la ley, de cases en ley queux ne fueront unques resolve ou adiudges par deuant: et les raisons & causes des dits resolutions & judgements. Publies en le size an del treshaut & tresillustre Jaques roy d’Engl. Fr. & Irel. & de Escoce le 42. Le fountaine de tout Pietie & Justice, & la vie de la Ley. In English, The Seventh Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of Common Pleas, of divers Resolutions and Judgments given upon solemn Arguments, and with greatdeliberation and Conference of the reverend Judges and Sages of the Law, of Cases in law which were never Resolved or Adjudged Before: and the Reasons and Causes thereof. Published in the Sixth year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 42., the Fountain of all Justice, and the life of the Law. Coke maintained that he had not intended to publish another part of the Reports so quickly, but the significance of the first case in Part Seven, Calvin’s Case, convinced him to bring it to print. Calvin’s Case was of great importance to the constitution of Great Britain in the relationship among its constituent nations and with her new colonies. The case was also important in determining the role of the courts, the Parliament, and the King and in determining the status of the subject to the King. Besides Calvin’s Case, this part of the Reports covers a wide range of mainly more recent cases, of local enforcement of criminal laws, property, appointment to offices, uses (a predecessor to the modern trust), wild animals, estates, inheritance, procedure, the powers of the Queen, and the effects of divorce.

I had no sooner (good Reader) made an end of the Sixth Part of my Commentaries or Reports, but the greatest Case that ever was argued in the Hall of Westminster began to come in question, and afterwards was Argued by all the Judges of England. This great Case (for that Memory is infida & labilis3) whiles the Matter was recent and fresh in mind, and almost yet sounding in the Ear, I set down in writing, out of my short Observations which I had taken of the effect of every Argument, (as my manner is, and ever hath been) a summary memorial of the principal authorities and reasons of the Resolutions of that Case, for mine own private solace and instruction. I never thought to have published the same, for that it was not like to give any direction in like Cases that might happen, (the chiefest end of publishing Reports) it is of his own nature so like the Phoenix, and so singular and rare in accident, as the union of two famous and ancient Kingdoms in ligeance and obedience under one great and mighty Monarch. Now when I had ended it for my private, I was by commandment to begin again (a matter of no small labour and difficulty) for the publick. For certainly, that succinct method and collection that will serve for the private memorial or repertory, especially of him that knew and heard all, will nothing become a publick Report for the present and all posterity, or be sufficient to instruct those Readers, who of themselves know nothing, but must be instructed by the Report only in the right rule and reason of the case in question. And as unda gignit undam,4 so commonly one Edition: current; Page: [163] labour cometh not alone: This brought on another with it; for seeing this Case was of so rare a quality, I thought good as well for thine instruction and use (good Reader) as for the repose and quiet of many, inresolving of Questions and Doubts (wherein there hath been great diversity of Opinions) concerning their estates and possessions, to publish some others that are common in accident, weighty in consequent, and yet never resolved or adjudged before: So as it is now verified in this, that which hath been said of old, Labor labori laborem addit.5

With this Seventh Work or part of my Reports (whereunto Almighty God of his goodness hath in this short time, amongst many other publick Employments, enabled me) I have out of my love unto all my dear Countrymen, of what perswasion in Religion soever they be, thought good to give them all a caveat or fore-warning in a Case of great importance, that deeply and dangerously concerns them all in so high a point, that in the first degree it is a Praemunire,6 and in the second High Treason. And yet many men, without all fear (by reason I think they know not the Law) run into the danger thereof almost every day. I must confess, that this is a writing or a scribling World, quotidie plures, quotidie pejus scribunt.7 And sure I am, that no man can either bring over those Books of late written (which I have seen) from Rome or Romanists, or read them, and justifie them, or deliver them over to any other with a liking and allowance of the same (as the Authors end and desire is they should) but they run into desperate dangers and downfalls; for the first offence is a Praemunire, which is to be adjudged to be out of the Kings protection, to lose all their Lands and Goods, and to suffer perpetual Imprisonment, and they that offend the second time therein, incur the heavy danger of high Treason. These Books have glorious and goodly Titles, which promise directions for the Conscience, and remedies for the Soul, but there is mors in olla:8 They are like to Apothecaries Boxes, quorum tituli pollicentur remedia, sed pixides ipsae venena continent,9 whose Titles promise remedies, but the Boxes themselves contain Poyson. This forewarning I give out of conscience and Edition: current; Page: [164] care of their safety, that blindfold might fall into so great danger by their means whom they so much reverence. I am not afraid of Gnats that can prick and cannot hurt, nor of Drones that keep a buzzing, and would, but cannot sting.

And little do I esteem an uncharitable and malicious practise in publishing of an erroneous and ill spelled Pamphlet, under the name Pricket, and dedicating it to my singular good Lord and Father in Law the Earl of Excester, as a Charge given at the Affises holden at the City of Norwich, 4 Augusti 1606. Which I protest was not only published without my privity, but (besides the omission of divers principal matters) that there is no one period therein expressed in that sort and sense that I delivered it: Wherein it is worthy of observation how their expectation (of scandalizing me) was wholly deceived, for behold the catastrophe. Such of the Readers as were learned in the Laws, finding not only gross Errors and Absurdities in Law, but palpable mistakings in the very words of Art, and the whole context of that rude and ragged Stile, wholly dissonant (the Subject being legal) from a Lawyers dialect, concluded, that inimicus & iniquus homo superseminavit zizania in medio tritici:11 The other discreet and indifferent Readers, out of Sense and Reason, found out the same conclusion, both in respect of the vanity of the phrase, and for that, I publishing about the same time one of my Commentaries, would, if I had intended the publication of any such matter, have done it my self, and not to have suffered any of my works to pass under the name of Pricket, and so una voce conclamaverunt omnes,12 That it was a shameful and shamless practice, and the Author thereof, to be a wicked and malicious falsary.

In these and the rest of my Reports, I have (as much as I could) avoided Obscurity, Ambiguity, Jeopardy, Novelty and Prolixity. 1. Obscurity, for that Edition: current; Page: [165] is like unto Darkness, wherein a Man for want of Light, can hardly with all his industry discern any way. 2. Ambiguity, where there is Light enough, but there be so many winding and intricate ways, as a Man, for want of direction, shall be much perplexed and intangled, to find out the right way. 3. Jeopardy, either in publishing of any thing, that might rather stir up Suits and controversies in this troublesome World, than stablish quietness and repose between Man and Man (for a Commentary should not be like unto the Winterly Sun; that raiseth up greater and thicker Mists and Fogs, than it is able to disperse) or in bringing the Reader, by any means, into the least question of peril or danger at all. 4. Novelty, For I have ever holden all new or private interpretations, or opinions, which have no Ground or Warrant out of the Reason or Rule of our Books, or former Presidents, to be dangerous, and not worthy of any Observation: For periculosum existimo quod honorum virorum non comprobatur exemplo.14 5. Prolixity, For a Report ought to be no longer than the matter requireth, and as Languor prolixus gravat medicum, ita relatio prolixa gravat lectorem.15

The Case of Postnati, I confess, is longer than any of the rest, and that for three Causes. 1. For that it was an Exchequer-chamber Case, for deciding whereof all the Judges of England (as the Law doth require) did argue openly and at large. 2. For that never any Case within Mans Memory, was argued by so many Judges in the Exchequer-chamber, as this was, there having argued the Lord Chancellor and 14 Judges. 3. For the variety as well of the important matter, as of the several kinds of excellent Learning and knowledge, delivered in the Arguments of this Case.

Finally, With these Wishes and Desires I conclude. 1. That the Studious Reader might indeed receive as great profit and delight in Reading this work, as I did (unless mine own judgment deceive me) in composing and framing thereof. 2. That quoad ejus fieri possit, quaiam plurima legibus ipsis difiniantur, quam paucissima vero Judicis arbitrio relinquantur.16

In the Court of King’s Bench, heard in the Exchequer by the Chancellor and all the Judges of England. First Published in the Reports, volume 7, page 1a.

Ed.: Under the feudal system, the absolute loyalty owed by a subject to the King, an allegiance enforced by duties that were tied to the holding of interests in land, made unthinkable, and illegal, the ownership of land by one person in two different kingdoms. When King James VI of Scotland assumed the English throne, both the Scots and the English were beholden to the same monarch, and the traditional reason for prohibiting a foreigner to own lands in the kingdom, which would have barred a Scot from holding lands in England and vice versa, was considerably weakened. It was particularly difficult when applied to someone who was born after James had taken the new throne, who were called the post-nati, a phrase by which the case is often known. The issue in this case arose when Robert Calvin, who was a Scot born three years after James’s coronation in England, came by land in England. His lands were entered by Richard and Nicholas Smith, and when Calvin’s guardians sued, the Smith’s defense was that Robert could not own the land.

The case was heard by all of the judges of England, while Coke was Chief Justice of Common Pleas, with arguments by Bacon as Solicitor General and Hobart as Attorney General. Coke was very active in this case, arguing the King’s position throughout and presenting, here the last argument, for Calvin, before the Court’s judgment. The Court, considering arguments based on the nature of allegiance, majesty, conquest, natural reason, and an unalterable law of nature, held that Calvin was not an alien, and he could hold land in England. This case had tremendous implications for James’s view of forging a single nation of Great Britain, as well as for the rights of subjects living in the new colonies overseas. For the effects of citizenship on a local level, see James Bagg’s Case, p. 404.

Edition: current; Page: [167]

The writ of Assize.James by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. To the Sheriff of Middlesex greeting: Robert Calvin, gent. hath complained to us, that Richard Smith and Nicholas Smith, unjustly, and without judgment, have disseised him of his freehold in |Edition: Sheppard2003; Page: [1 b] Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard, in Shoreditch, within thirty years now last past; and therefore we command you, that if the said Robert shall secure you to prosecute his claim, then that you cause the said tenement to be reseised with the chattels which within it were taken, and the said tenement with the chattels to be in peace until Thursday next after fifteen days of Saint Martin next coming; and in the mean time, cause twelve free and lawful men of that neighbourhood to view the said tenement, and the names of them to be inbreviated; and summon them by good summoners, that they be then before us wherever we shall then be in England, ready thereof to make recognition; and put, by sureties and safe pledges, the aforesaid Richard and Nicholas, or their bailiffs, (if they cannot be found), that they be then there, to hear the recognition; and have there the summoners, the names of the pledges, and this writ. Witness ourself at Westminster, the 3d day of November, in the 5th year of our reign of England, France, and Ireland, and of Scotland the one-and-fortieth.

For 40s. paid in the hamper,

Kindesley.

The Count.Middlesex, ss. The assize cometh to recognise, The Count. if Richard Smith, and Nicholas Smith unjustly, and without judgment, did disseise Rob. Calvin, gent. of his freehold in Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard in Shoreditch, within thirty years now last past: and whereupon the said Robert, who is within the age of twenty-one years, by John Parkinson, and William Parkinson, his guardians, by the Court of the said King here to this being jointly and severally specially admitted, complaineth that they disseised him of one messuage with the appurtenances, &c.Aliance pleaded in bar. And the said Richard and Nicholas, by William Edwards, their attorney, come and say, that the said Robert ought not to be answered to his writ aforesaid, because they say that the said Robert is an alien born, on the 5th day of Nov. in the 3rd year of the reign of the King that now is, of England, France, and Ireland, and of Scotland the thirty-ninth, at Edinburgh within his kingdom of Scotland aforesaid, and within the allegiance of the said lord the King, of the said kingdom of Scotland, and out of the allegiance of the said lord the Edition: current; Page: [168] King of his kingdom of England; and at the time of the birth of the said Robert Calvin, and long before, and continually afterwards, the aforesaid kingdom of Scotland, by the proper rights, laws, and statutes of the same kingdom, and not by the rights, laws, or statutes of this kingdom of England, was and yet is ruled and governed. And this he is ready to verify, and thereupon prayeth judgment, if the said Robert, to his said writ aforesaid, ought to be answered, &c.Demurrer. And the aforesaid Robert Calvin saith, that the aforesaid plea, by the aforesaid Richard and Nicholas above pleaded, is insufficient in law to bar him, the said Robert from having an answer to his writ aforesaid; and that the said Robert to the said plea in manner and form aforesaid pleaded, needeth not, nor by the law of the land is bound to answer; and this he is ready to verify, and hereof prayeth judgment; and that the said Richard and Nicholas to the aforesaid writ of the said Robert may answer. And the said Richard and Nicholas,Joinder. forasmuch as they have above alleged sufficient matter in law to bar him the said Robert from having an answer to his said writ, which they are ready to verify; which matter the aforesaid Robert doth not gainsay, nor to the same doth in any ways answer, but the said averment altogether refuseth to admit as before pray judgment, if the aforesaid Robert ought to be answered to his said writ, &c.Continuances. And because the Court of the lord the King here are not yet advised of giving their judgment of and upon the premises, day thereof is given to the parties aforesaid; before the lord the King at Westminster until Monday next after eight days of St. Hilary, to hear their judgment thereof, because the Court of the lord the King here thereof are not yet, &c. And the assize aforesaid remains to be taken before the said lord the King, until the same Monday there, &c. And the sheriff to distrain the recognitors of the assize aforesaid: and in the interim to cause a view, &c.; at which day, before the lord the King at Westminster, come as well the aforesaid Robert Calvin, by his guardians aforesaid,Curia advisare valt. as the aforesaid Richard Smith and Nicholas Smith by their attorney aforesaid; and because the Court of the Lord the King |Edition: Sheppard2003; Page: [2 a] here of giving their judgment of and upon the premises is not yet advised, day thereof is given to the parties aforesaid before the lord the King at Westminster, until Monday next after the morrow of the Ascension of our Lord, to hear their judgment: because the Court of the lord the King here are not yet, &c. And the assize aforesaid remains further to be taken, until the same Monday there, &c.: and the sheriff, as before, to distrain the recoguitors of the assize aforesaid, and in the interim to cause a view, &c. At which day, before the lord the King at Westminster, come as well the aforesaid Robert Calvin by Edition: current; Page: [169] his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith, by their attorney aforesaid, &c.: and because the Court of the lord the King here, &c.

The Question.The question of this case as to matter in law was, whether Robert Calvin the Plaintiff (being born in Scotland since the Crown of England descended to His Majesty) be an alien born, and consequently disabled to bring any real or personal action for any lands within the realm of England. After this case had been argued in the Court of King’s Bench at the barre, by the counsel learned of either party, the Judges of that Court, upon conference and consideration of the weight and importance thereof, adjourned the same (according to the ancient and ordinary course and order of Law) into the Exchequer Chamber, to be argued openly there; first by the counsel learned of either party, and then by all the Judges of England: where afterwards the case was argued by Bacon Solicitor General, on the part of the Plaintiff, and by Laur. Hide for the Defendant: and afterward by Hobart Attorney-General for the Plaintiff, and by Serjeant Hutton for the Defendant: and in Easter term last, the case was argued by Heron puisne Baron of the Exchequer, and Foster puisne Judge of the Court of Common Pleas: and, ontheseconddayappointed for this case, by Crook puisne Judge of the King’s Bench, and Altham Baron of the Exchequer: the third day by Snigge Baron of the Exchequer, and Williams one of the Judges of the King’s Bench: the fourth day by Daniel one of the Judges of the Court of Common Pleas, and by Yelverton one of the Judges of the King’s Bench: And in Trinity Term following, by Warbarton one of the Judges of the Common Pleas, and Fenner one of the Judges of the King’s Bench: and after argued Walmesley one of the Judges of the Common Pleas, and Tanfield chief Baron: and, at two several days in the same Term, Coke, chief Justice of the Common Pleas, Fleming, ch. Justice of the King’s Bench, and Sir Thomas Egerton, Lord Ellesmere, Lord Chancellor of England, argued the case (the like plea in disability |Edition: Sheppard2003; Page: [2 b] of Robert Calvin’s person being pleaded mutatis mutandis2 in the Chancery in a suit there for evidence concerning lands of inheritance, and by the Lord Chancellor adjourned also into the Exchequer chamber, to the end that one rule might overrule both the said cases). And first (for that I intend to make as summary a Report as I can) I Edition: current; Page: [170] will at the first set down such arguments and objections as were made and drawn out of this short record against the Plaintiff,The arguments and objections on the part of the defendant. by those that argued for the Defendants. It was observed, that in this plea there were four nouns, quatuor nomina,3 which were called nomina operativa,4 because from them all the said arguments and objections on the part of the Defendants were drawn; that is to say, 1. Ligeantia5 (which is twice repeated in the plea, for it is said, Infra ligeantiam domini regis regni sui Scotiae, et extra ligeantiam domini regis regni sui Angliae.)6 2. Regnuum7 (which also appeareth to be twice mentioned, viz. regnum Angliae, and regnum Scotiae.)8 3. Leges9 (which are twice alleged, viz. Leges Angliae, and leges Scotiae,10 two several and distinct Lawes). 4. Alienigena11 (which is the conclusion of all, viz. that Robert Calvin is Alienigena).

1. Ligentia. By the first it appeareth, that the Defendants do make two ligeances, one of England, and another of Scotland, and from these several ligeances two arguments were framed, which briefly may be concluded thus: Whosoever is born infra ligeantiam, within the ligeance of King James of his kingdom of Scotland, is Alienigena, an alien born, as to the kingdom of England: but Robert Calvin was born at Edinburgh, within the ligeance of the King of his kingdom of Scotland; therefore Robert Calvin is Alienigena, an alien born, as to the kingdom of England. 2. Whosoever is born extra ligeantiam, out of the ligeance of King James of his kingdom of England, is an alien as to the kingdom of England: but the plaintiff was born out of the ligeance of the King of his kingdom of England; therefore the Plaintiff is an alien, &c. Both these arguments are drawn from the very words of the plea, viz. Quod praedictus Robertus est alienigena, natus 5 Novembrisannoregnidomini regis nunc Angliae, &c. tertio, apud Edenburgh infra regnum Scotiae, ac infra Edition: current; Page: [171] ligeantiam dicti domini regis dicti regni sui Scotiae, ac extra ligeantiam dicti domini regis regni sui Angliae.12

2. Regna. From the several kingdoms, viz. regnum Angliae, and regnum Scotiae, three arguments were drawn: 1. Quando duo jura (imo duo regna) concurrunt in una persona, aequum est ac si essent in diversis:13 but in the King’s person there concurr two distinct and several kingdoms; therefore it is all one as if they were in divers persons, |Edition: Sheppard2003; Page: [3 a] and consequently the Plaintiff is an alien as all the Antenati14 be for that they were born under the ligeance of another King. 2. Whatsoever is due to the King’s several politic capacities of the several kingdoms is several and divided: but ligeance of each nation is due to the King’s several politique capacities of the several kingdoms; Ergo, The ligeance of each nation is several and divided, and consequently the Plaintiff is an alien, for that they that be born under several ligeances are aliens one to another. 3. Where the King hath several kingdoms by several titles and descents, there also are the ligeances several: but the King hath these two kingdoms by several titles and descents; therefore the ligeances are several. These three arguments are collected also from the words of the plea before remembered.

3. Leges. From the several and distinct lawes of either kingdom, they did reason thus; 1. Every subject that is born out of the extent and reach of the Laws of England, cannot by judgment of those laws be a natural subject to the King, in respect of his kingdom of England: but the Plaintiff was born at Edinburgh, out of the extent and reach of the Laws of England; therefore the Plaintiff by the judgment of the lawes of England cannot be a natural subject to the King, as of his kingdom of England. 2. That subject, that is not at the time and in the place of his birth inheritable to the laws of England, cannot be inheritable or partaker of the benefits and privileges given by the laws of England: but the plaintiff at the time, and in the place of his birth was not inheritable to the Laws of England, (but only to the Laws of Scotland;) therefore he is not inheritable, or to be partaker of the benefits or privileges Edition: current; Page: [172] of the Laws of England. 3. Whatsoever appeareth to be out of the jurisdiction of the laws of England, cannot be tried by the same Laws: but the Plaintiff’s birth at Edenborough is out of the jurisdiction of the laws of England; therefore the same cannot be tried by the Laws of England. Which three arguments were drawn from these words of the plea, viz. Quodque tempore nativitatis praeedictus Roberti Calvin, ac diu antea, et continuè postea, praedictum regnum Scotiae per jura, leges et statuta ejusdem regni propria, et non per jura, leges, seu statuta hujus regni Angliae regulat’ et gubernat’ fuit, et adhuc est.15

4. Alienigena. From this word Alienigena they argued thus Every subject that is alienae gentis (id est) alienae ligeantiae, est alienigena:16 but such a one is the plaintiff; therefore, &c. And to these arguments, all that was spoken learnedly and at large by those that argued against the Plaintiff may bereduced.

|Edition: Sheppard2003; Page: [3 b] But it was resolved by the L. Chancellor and twelve Judges, viz. the 2. chief Justices, the chief baron, Justice Fenner, Warbarton, Yelverton, Daniel, Williams, baron Snig, baron Altham, Justice Crooke, and baron Heron, that the Plaintiff was no alien, and consequently that he ought to be answered in this Assise by the Defendant.

How this case was argued by the Lord Chancellor and the Judges.This case was as elaborately, substantially, and judicially argued by the Lord Chancellor, and by my brethren the Judges, as I ever read or heard of any; and so in mine opinion the weight and consequence of the cause, both in praesenti et perpetuis futuris temporibus17 justly deserved: for though it was one of the shortest and least that ever we argued in this Court, yet was it the longest and weightiest that ever was argued in any court; the shortest in syllables, and the longest in substance; the least for the value (and yet not tending to the right of that least) but the weightiest for the consequent, both for the present, and for all posterity. And therefore it was said, that those that had written de fossilibus18 did observe, that gold hidden in the bowels of the earth, was in respect of the masse of the whole earth, parvum in magno:19 but of this short Edition: current; Page: [173] plea it might be truly said (which is more strange) that here was magnum in parvo.20 And in the arguments of those that argued for the Plaintiff, I specially noted, That albeit they spake according to their own heart, yet they spake not out of their own head and invention: wherein they followed the counsel given in God’s book, Interroga pristinam generationem21 (for out of the old fields must come the new corn) et diligenter investiga patrum memoriam,22 and diligently search out the judgments of our forefathers: and that for divers reasons. First on our own part, Hesterni enim sumus et ignoramus, et vita nostra sicut umbra super terram:23 for we are but of yesterday, (and therefore had need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and our daies upon the earth are but as a shadow, in respect of the old ancient dayes and times past, wherein the Laws have been by the wisdom of the most excellent men, in many successions of ages, by long and continual experience (the trial of right and truth) fined and refined, which no one man (being of so short a time) albeit he had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained unto. And therefore it is optima regula, qua nulla est verior aut firmior in jure, Neminem oportet esse sapientiorem legibus:24 no man ought to |Edition: Sheppard2003; Page: [4 a] take upon him to be wiser than the laws. Secondly, in respect of our forefathers: Ipsi25 (saith the text) docebunt te, et loquentur tibi, et ex corde suo proferent eloquia,26 they shall teach thee, and tell thee, and shall utter the words of their heart, without all equivocation or mental reservation; they (I say) that cannot be daunted with fear of any power above them, nor be dazzled with the applause of the popular about them, nor fretted with any discontentment (the matter of opposition and contradiction) within them, but shall speak the words of their heart, without all affection or infection whatsoever.

Also in their arguments of this case concerning an alien, they told no strange Edition: current; Page: [174] histories, cited no foreign laws, produced no alien precedents, and that for two causes: the one, for that the Laws of England are so copious in this point, as God willing by the report of this case shall appear: the other, lest their arguments concerning an alien born, should become forein, strange, and an alien to the state of the question, which being quaestio juris,27 concerning freehold, and inheritance in England, is only to be decided by the laws of this Realm. And albeit I concurred with those that adjudged the Plaintiff to be no alien, yet do I find a mere stranger in this case, such a one as the eye of the Law (our books, and book cases) never saw, as the ears of the Law (our Reporters) never heard of, nor the mouth of the Law (for Judex est lex loquens28) the Judges our forefathers of the Law never tasted: I say, such a one, as the stomack of the Law, our exquisit and perfect Records of pleadings, entries, and judgments, (that make equal and true distribution of all cases in question) never digested. In a word, this little plea is a great stranger to the Laws of England, as shall manifestly appear by the resolution of this case. And now that I have taken upon me to make a report of their arguments,The method that the reporter doth use. I ought to do the same as truly, fully, and sincerely as possibly I can: howbeit, seeing that almost every Judge had in the course of his argument a peculiar method, and I must only hold myself to one, I shall give no just offence to any, if I challenge that which of right is due to every Reporter, that is, to reduce the summe and effect of all to such a method, as upon consideration had of all the arguments, the Reporter himself thinketh to be fittest and clearest for the right understanding of the true reasons and causes of the judgment and resolution of the case in question.

What things did fall into consideration in this case.In this case 5. things did fall into consideration. 1. Ligeantia. 2. Leges. 3. Regna. 4. Alienigena. 5. What legal inconveniences would ensue on either side.

|Edition: Sheppard2003; Page: [4 b] 1. Concerning ligeance: 1. It was resolved what ligeance was: 2. How many kinds of ligeances there were: 3. Where ligeance was due: 4. To whom it was due: and lastly, How it was due.

2. For the Laws: 1. That ligeance, or obedience of the subject to the Sovereign, is due by the Law of nature: 2. That this Law of nature is part of the Laws of England: 3. That the Law of nature was before any judicial or municipal Edition: current; Page: [175] Law in the world: 4. That the Law of nature is immutable and cannot be changed.

3. As touching the kingdomes: How farr forth by the act of Law the Union is already made, and wherein the kingdomes doe yet remain separate and divided.

4. Of Alienigena, an alien born: 1. What an alien born is in Law: 2. The division and diversity of aliens: 3. Incidents to every alien: 4. Authorities in Law: 5. Demonstrative conclusions upon the premises, that the Plaintiff can be no alien.

5. Upon due consideration had of the consequent of this case: What inconveniences legal should follow on either party.

And these several parts I will in this Report pursue in such order as they have been propounded: and first de Ligeantia.

The 1st general part what ligeance is.1. Ligeance is a true and faithful obedience of the subject due to his Sovereign. This ligeance and obedience is an incident inseparable to every subject; for as soon as he is born he oweth by birth right ligeance and obedience to his Sovereign. Ligeantia est vinculum fidei; and Ligeantia est quasi legis essentia. Ligeantia est ligamentum, quasi ligatio mentium: quia sicut ligamentum est connexio articulorum et juncturarum, &c.29 As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance joyn together the Sovereign and all his Subjects, quasi uno ligamine. Glanvil, who wrote in the reign of Hen. 2. lib. 9. cap. 4. speaking of the connexion which ought to be between the Lord and Tenant that holdeth by homage, saith, That mutua debet esse dominii et fidelitatis connexio, ita quod quantum debet domino ex homagio, tantum illi debet dominus ex dominio, praeter solam reverentiam,30 and the Lord (saith he) ought to defend his tenant. But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, |Edition: Sheppard2003; Page: [5 a]regere etprotegere subditos suos:30Note.so as between the Sovereign and subject there is duplex et Edition: current; Page: [176] reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen.31 And therefore it is holden in 20 H. 7, 8. that there is a liege or ligeance between the King and the subject. And Fortescue, cap. 13. Rex ad tutelam legis, corporum, et bonorum subditorum erectus est.32 And in the Acts of Parliament of 10 Rich. 2. cap. 5. and 11 Rich. 2. cap. 1. 14 Hen. 8. cap. 2. &c. Subjects are called liege people: and in the acts of Parliament in 34 Hen. 8. cap. 1. and 35 Hen. 8. cap. 3., &c. the King is called the liege Lord of his Subjects. And with this agreeth M. Skene in hisbook de expositione verborum (which book was cited by one of the Judges which argued against the Plaintiff) Ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him, and he is called their liege Lord, because he should maintain and defend them. Whereby it appeareth, that in this point the Law of England, and of Scotland is all one. Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem.33 And hereby it plainly appeareth, that ligeance doth not begin by the oath in the Leet; for many men owe true ligeance that never were sworn in a Leet, and the swearing in a Leet maketh no denization, as the book is adjudged in 14 Hen. 4. fol. 19. This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience or obeysance of the subject to the King, obedientia regi, 9 Edw. 4. 7. 9 Edw. 4. 6. 2 Rich. 3. 2. in the book of entries, Ejectione Firm’. 14 Hen. 8. cap. 2. 22 Hen. 8. cap. 8., &c. Sometime he is called a natural liege man that is born under the power of the King, sub potestate regis,34 2. Hen. 3. tit. Dower. Vide the Statute de 11 Edw. 3. cap. 2 Sometimes ligeance is called faith Fides, ad fidem Regis, &c. Bracton who wrote in the reign of Hen. 3. lib. 5. tractat’ de exceptionibus, cap. 24. fol. 427. Est etiam alia exceptio quae competit ex persona quaerentis, proper defectum nationis, ut si quis alienigena qui fuit ad fidem Regis Franc’, &c.35 And Fleta (which book Edition: current; Page: [177] was made in the reign of E. 1.) agreeth therewith; for lib. 6. c. 47. de exceptione ex omissione participis, it is said, vel dicere potuit, quod nihil juris clamare poterit tanquam particeps eo quod est ad fidem regis Franciae, quia alienigenae repelli debent in Anglia ab agendo, donec fuerunt ad fidem regis Angliae.36Vide 25 Edw. 3. de natis ultra mare.37 [faith and ligeance of the King of England; and Litt. lib. 2. cap. Homage, saving the faith that I owe to our Sovereign Lord the King] and Glanvil, lib. 9. cap. 1. Salva fide debita dom’ Regi et haeredibus suis.38 Sometimes ligeance is |Edition: Sheppard2003; Page: [5 b] called ligealty, 22 Ass. Pl. 25. By all which it evidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens. So as, seeing now it doth appear what ligeance is, it followeth in order, that we speak of the several kinds of ligeance. But herein we need to be very wary, for this caveat the law giveth, ubi lex non distinguit nec nos distinguere debemus;39 andcertainly lex non distinguit,40 but where omnia membra dividentia41 are to be found out and proved by the law itself.

How many kinds of Ligeonces there be.2. There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright, and is called alta ligeantia42a and he that oweth this is called subditus natus.43 The second is called ligeantia acquisita,44 not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus.45 The third is ligeantia localis46 wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, Edition: current; Page: [178] for that the one (as it hath been said) draweth the other. The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the Torn or Leet.Ligeantia naturalis. The first, that is, ligeance natural, &c. appeareth by the said Acts of Parliament, wherein the King is called natural liege Lord, and his people natural liege subjects]; this also doth appear in the indictments of treason (which of all other things are the most curiously and certainly indicted and penned) for in the indictment of the Lord Dacre, in 26 Hen. 8. it is said, praed’ Dominus Dacre debitum fidei et ligeant’ suae, quod praefato domino Regi naturaliter et de jure impendere debuit, minime curans, &c.47 And Reginald Pool was indicted in 30 Hen. 8. for committing treason contra dom’Regemsupremum et naturalem dominum suum.48 And to this end were cited the indictment of Edward Duke of Somerset in 5 Edw. 6. and many others both of ancient and later times. But in the indictment of treason of John Dethick in 2 and 3 Ph. and Mar. it is said, quod praed’ Johannes machinans, &c. praedict’ dominum Philippum et dominam Mariam supremos dominos suos,49 and omitted (naturalis) because King Philip was not his natural liege Lord. And of this point more shall be said when we speak of local obedience.Ligeantia acquisita. The second is ligeant’ acquisita, or denization: and this in the books and records of the law appeareth to be threefold; 1. absolute, as the common denizations be, to them and their |Edition: Sheppard2003; Page: [6 a] heires, without any limitation or restraint: 2. limited, as when the King doth grant letters of denization to an alien, and to the heirs males of his body, as it appeareth in 9 Edw. 4. fol. 7. in Baggot’s case; or to an alien for term of his life, as was granted to John Reynel, 11 Hen. 6. 3. It may be granted upon condition, for cujus est dare, ejus est disponere,50 whereof I have seen divers precedents. And this denization of an alien may be effected three manner of wayes: by Parliament, as it was in 3 Hen. 6. 55. in Dower: by letters patents, as the usual manner is: and by conquest, as if the King and his subjects should conquer another Kingdome or dominion, as well Antenati as Postnati, as well they which fought in the field, as they which remained at home for defence Edition: current; Page: [179] of their countrey, or employed elsewhere, are all denizens of the kingdom or dominion conquered. Of which point more shall be said hereafter.

Ligeantia localis.3. Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part. And this appeareth in 4 Mar. Br. 32. and 3 and 4 Ph. and Mar. Dyer 144. Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the Kingand Queen, and the indictment concluded contra ligeant’ suae debitum;51 for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject: a fortiori52 he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta.53 And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King. And concerning this local obedience, a president was cited in Hill. 36. Eliz. when Stephano Ferrara de Gama, and Emanuel Lewes Tinoco, two Portugals born, coming into England under Queen Elizabeth’s safe-conduct, and living here under her protection, joyned with Doctor Lopez in treason within |Edition: Sheppard2003; Page: [6 b] this Realm against her Majesty: and in this case two points were resolved by the Judges. First, that their indictment ought to begin, that they intended treason contra dominam Reginam, &c.55 omitting these words (naturalem domin’ suam)56 and ought to conclude contra ligeant’ suae debitum. But if an alien enemy come to invade this realm, and be taken in warr, he cannot be indicted of treason: for the indictment cannot Edition: current; Page: [180] conclude contra ligeant’ suae debitum, for he never was in the protection of the King, nor ever owed any manner of ligeance unto him, but malice and enmity, and therefore he shall be put to death by martial law. And so it was in anno 15 Hen. 7. in Perkin Warbeck’s case, who being analienborn in Flanders, feigned himself to be one of the sons of Edward the fourth, and invaded this realm with great power, with an intent to take upon him the dignity royall: but being taken in the warr, it was resolved by the Justices, that he could not be punished by the Common law, but before the Constable and Marshal (who had special commission under the great Seal, to hear and determine the same according to martial law) he had sentence to be drawn, hanged, and quartered, which was executed accordingly. And this appeareth in the book of Griffeth Attorney general, by an extract out of the book of Hobart, Attorney general to King Hen. 7.

Ligeantia legalis.4. Now are we to speak of legal ligeance, which in our books, viz. 7 Edw. 2. tit. Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called Suit Royall, because that the ligeance of the subject is only due unto the King. This oath of ligeance appeareth in Britton, who wrote in anno 5 Edw. 1. cap. 29. (and is yet commonly in use to this day in every Leet) and in our books; the effect whereof is: “You shall swear, that from this day forward, you shall be true and faithfull to our Sovereign Lord King James; and his heires, and truth and faith shall bear of life and member, and terrene honour, and you shall neither know nor hear of any ill or damage intended unto him, that you shall not defend. So help you Almighty God.” The substance and effect hereof is (as hath been said) due by the law of nature, ex institutione naturae,57 as hereafter shall appear: the form and addition of the oath is, ex provisione hominis.58 In this oath of ligeance five things were observed. First, That for the time it is indefinite, and without limit, “from this day forward.” Secondly, Two excellent qualities are required, that is, to be “true and faithful.” Third, To whom? “to our Sovereign Lord the King and his heirs”: (And albeit Britton doth say, to the King of England that is spoken proper excellentiam, to design the person, and not |Edition: Sheppard2003; Page: [7 a] to confine the ligeance: for a Subject doth not swear his ligeance to the King, only as King of England and not to him as King of Scotland, or of Ireland, &c. but generally to the King). Fourth. In what manner? Edition: current; Page: [181] “and faith and troth shall bear, &c. of life and member;” that is, until the letting out of the last drop of our dearest heart blood. Fifth. Where, and in what places ought these things to be done? in all places whatsoever; for, “you shall neither know nor hear of any ill or damage,” &c. that you shall not defend, &c. so as natural ligeance is not circumscribed within any place. It is holden 12 Hen. 7. 18b. That he that is sworn in the Leet, is sworn to the King for his ligeance, that is, to be true and faithful to the King: and if he be once sworn for his ligeance, he shall not be sworn again during his life. And all Letters patents of denization be, that the Patentee shall behave himself tanquam verus et fidelis ligeus domini Regis.59 And this oath of ligeance at the Tourne and Leet was first instituted by King Arthur; for so I read, Inter leges Sancti Edwardi Regis ante conquestum 3 cap. 35. Et quod omnes principes et comites, proceres, milites et liberi homines debent jurare, &c. in Folkemote, et similiter omnes proceres regni, et milites et liberi homines universi totius regni Britann’ facere debent in pleno Folkemote fidelitatem domino Regi, &c. Hanc legem invenit Arthurus qui quondam fuit inclytissimus Rex Britonum, &c. hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a regno, &c. et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit. Vide Lambert inter leges Regis Edwardi, &c. fol. 135 et 136.60 By this it appeareth, when and from whom this legal ligeance had his first institution within this realm. Ligeantia in the case in question is meant and intended of the first kind of ligeance, that is, of ligeance natural, absolute, &c. due by nature and birth-right. But if the Plaintiff’s father be made a denizen, and purchase lands in England to him and his heirs, and die seised, this land shall never descend to the Plaintiff, for that the King by his Letters Patents may make a denizen, but cannot naturalize him to all purposes, as an Act of Parliament may doe; neither can Letters Patents make any inheritable in this case, that by the common Law cannot inherit. And herewith agreeth 36 Hen. 6. tit. Denizen Br. 9.

Edition: current; Page: [182]

Homage is two-fold.Homage in our book is twofold, that is to say, Homagium Ligeum,61 and that is as much as ligeance, of which Bracton speaketh, lib. 2. c. 35. fol. 79. Soli Regi debet’ sine dominio, seu servitio:62 |Edition: Sheppard2003; Page: [7 b] and there is Homagium feodale,63 which hath his original by tenure. In Fit. Nat. Brev. 269. there is a writ for respiting of this later homage (which is due ratione feodi sive tenurae:) Sciatis quod respectuamus homagium nobis de terr’ et tenementis quae tenentur de nobis in capite debit’.64 But Homagium ligeum, i.e. Ligeantia, is inherent and inseparable, and cannot be respited.

Where natural legiance is due.3. Now are we come unto (and almost past) the consideration of this circumstance, where natural ligeance should be due: For by that which hath been said it appeareth, that ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi65 for that were to confound predicaments, and to goe about to drive (an absurd and impossible thing) the predicament of Quality into the predicament of ubi. Non respondetur ad hanc quaestionem, ubi est? to say, Verus et fidelis subditus est; sed ad hanc quaestionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est.66 But yet for the greater illustration of the matter, this point was handled by itself, and that ligeance of the subject was of as great an extent and latitude, as the royal power and protection of the King, et è converso.67 It appeareth by the statute of 11 Hen. 7. cap. 1. and 2 Edw. 6. cap. 2. that the subjects of England are bound by their ligeance to goe with the King, &c. in his wars, as well within the Realm, &c. as without. And therefore we daily see, that when either Ireland or any other of his Majesty’s dominions be infested with invasion or insurrection, the king of England sendeth his subjects out of England, and his subjects out of Scotland also into Ireland, for the withstanding or suppressing of the same, to the end his rebels may feel the swords of either nation. And Edition: current; Page: [183] so may his subjects of Guernsey, Jersey, Isle of Man, &c. be commanded to make their swords good against either rebel or enemy, as occasion shall be offered: whereas if natural ligeance of the subjects of England should be local, that is, confined within the realm of England or Scotland, &c. then were not they bound to goe out of the continent of the realm of England or Scotland, &c. And the opinion of Thirninge in 7 Hen. 4. tit. Protect’ 100. is thus to be understood, that an English subject is not compellable to go out of the realm without wages, according to the statutes of 1 Edw. 3. c. 7. 18 Edw. 3. c. 8. 18 Hen. 6. c. 19, &c. 7 Hen. 7. c. 1. 3 Hen. 8. c. 5, &c. In anno 25 Edw. 1. Bigot Earl of Norfolk and Suffolk, and Earl Marshal of England, and Bohun Earl of Hereford and High Constable of England, did exhibit a petition to the King in French (which I have seen anciently recorded) on |Edition: Sheppard2003; Page: [8 a] the behalf of the Commons of England, concerning how and in what sort they were to be employed in his Majesty’s warrs out of the realm of England: and the Record saith, that, post multas et varias altercationes,68 it was resolved, they ought to go but in such manner and form as after was declared by the said Statutes, which seem to be but declarative of the common Law. And this dothplentifully and manifestly appear in our books, being truly and rightly understood. In 3 H. 6. tit. Protection 2. one had the benefit of a protection, for that he was sent into the King’s wars in comitiva,69 of the protector; and it appeareth by the Record, and by the Chronicles also, that this employment was into France; the greatest part thereof then being under the King’s actual obedience, so as the subjects of England were employed into France for the defence and safety thereof: In which case it was observed, that seeing the protector, who was Prorex,70 went, the same was adjudged a voyage royal, 8 Hen. 6. fol. 16. the Lord Talbot went with a company of Englishmen into France, then also being for the greatest part under the actual obedience of the King, who had the benefit of their protections allowed unto them. And here were observed the words of the writ in the Register, fol. 88. where it appeareth, that men were employed in the King’s warrs out of the realm per praeceptum nostrum,71 and the usual words of the writ of protection be in obsequio nostro.72 32 Hen. 6. Edition: current; Page: [184] fol. 4. it appeareth, that Englishmen were pressed into Guyenne, 44 Edw. 3. 12. into Gascoyn with the Duke of Lancaster, 17 Hen. 6. tit. Protection, into Gascoyn with the Earl of Huntington, steward of Guienne, 11 Hen. 4. 7. into Ireland, and out of this realm with the Duke of Gloucester and the Lord Knolles: Vide 19 Hen. 6. 35. And it appeareth in 19 Edw. 2. tit. Avowrie 224. 26 Ass. 66. 7 Hen. 19, &c. that there was forinsecum servitium73 foreign service, which Bracton, fol. 36. calleth regale servitium;74 and in Fitz. N. B. 28. that the King may send men to serve him in his warrs beyond the sea. But thus much (if it be not in so plain a case too much) shall suffice for this point for the King’s power, to command the service of his Subjects in his wars out of the Realm. Whereupon it was concluded, That the ligeance of a natural-born subject was not local, and confined only to England. Now let us see what the Law saith in time of peace, concerning the King’s protection and power of command, as well without the realm, as within, that his Subjects in all places may be protected from violence, and that justice may equally be administered to all his Subjects.

To whom and how ligeance is due.4 & 5. By that which hath been said it appeareth, that this ligeance is due only to the King; so as therein the question is not now, cui, sed quomodo debetur.89 It is true, that the King hath two capacities in him: one a natural body, being descended of the blood royal of the Realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like; the other is a politic, body or capacity, so called, because it is framed by the policy of man (and in 21 Edw. 4. 39. b. is called a mysticall body;) and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy, nonage, &c. Vide Pl. Com. in the case of The Lord Barkley, 238. and in the case of The Duchy 213. 6 Edw. 3. 291. and 26 Ass pl. 54. Now seeing the King hath but one person, and several capacities, and one politique capacitie for the Realm of England, and another for the Realm of Scotland; it is necessary to be considered, to which capacity ligeance is due. Edition: current; Page: [190] And it was resolved, that it was due to the natural person of the King (which is ever accompanied with the politique capacity, and the politique capacity as it were appropriated to the natural capacity) and it is not due to the politique capacity only, that is, to his crown or kingdom distinct from his natural capacity, and that for divers reasons. First, every subject (as it hath been affirmed by those that argued against the Plaintiff) is presumed by Law to be sworn to the King, which is to his natural person; and likewise the King is sworn to his subjects (as it appeareth in Bracton, lib. 3. de actionibus, cap. 9. fol. 107.) which oath he taketh in his natural |Edition: Sheppard2003; Page: [10 b] person: for the politique capacity is invisible and immortal; nay, the politique body hath no soul, for it is framed by the policy of man. 2. In all indictments of Treason, when any doe intend or compass mortem et destructionem domini Regis90 (which must needs be understood of his natural body, for his politique body is immortal, and not subject to death) the indictment concludeth, contra ligeantiae suae debitum;91ergo, the ligeance is due to the natural body. Vid Fit. Justice of Peace 53. et Pl. Com. 384. in The Earl of Leicester’s case. 3. It is true, that the King in genere92 dieth not, but, no question, in individuo93 he dieth: as for example, Henry the eighth, Edward the sixth &c. and Queen Elizabeth died, otherwise you should have many kings at once. In 2 et 3 Ph. et Mar. Dyer 128. one Constable dispersed divers bills in the streets in the night, in which was written, that King Edward the sixth was alive, & in France, &c: and in Coeman street in London, he pointed to a young man, and said, that he was King Edward the sixth. And this being spoken de individuo (and accompanied with other circumstances) was resolved to be high Treason; for the which Constable was attainted and executed. 4. A body politique (being invisible) can as a body politique neither make nor take homage: Vide 33 Hen. 8. tit. Fealty, Brook. 5. In fide,94 in faith or ligeance nothing ought to be feigned, but ought to be ex fide non ficta.95 6. The King holdeth the kingdom of England by birthright inherent, by descent from the blood royal, whereupon succession doth attend; and therefore it is usually said, to the King, his heirs, and successors, wherein heirs is first Edition: current; Page: [191] named, and successors is attendant upon heirs. And yet in our ancient books, succession and successor are taken for hereditance and heirs. Bracton lib. 2. de acquirendo rerum dominio c. 29. Et sciend’ est quod haereditas est successio in universum jus quod defunctus antecessor habuit, ex causa quacunque acquisitionis vel successionis, et alibi affinitatis jure nulla successio permittitur.96 But the title is by descent, by Queen Elizabeth’s death the crown and kingdom of England descended to his Majesty, and he was fully and absolutely thereby King, without any essential ceremony or act to be done ex post facto:97 for coronation is but a royal ornament and solemnization of the royal descent, but no part of the title. In the first year of his Majesties reign, before his Majesties coronation, Watson and Clarke, Seminary priests, and others, were of opinion, that his Majesty was no complete and absolute King before his coronation, but that coronation did add a confirmation and perfection to the descent; and therefore (observe their damnable and damned consequent) that they by |Edition: Sheppard2003; Page: [11 a] strength and power might before his coronation take him and his royal issue into their possession, keep him prisoner in the Tower, remove such counsellors and great officers as pleased them, and constitute others in their places, &c. And that these and other acts of like nature could not be Treason against his Majesty, before he were a crowned King. But it was clearly resolved by all the Judges of England, that presently by the descent his Majesty was completely and absolutely King, without any essential ceremony or act to be done ex post facto, and that coronation was but a Royal ornament, and outward solemnization of the descent. And this appeareth evidently by infinite precedents and book cases, as (taking one example in a case so clear for all) King Henry the Sixth was not crowned until the eighth year of his reign, and yet divers men before his coronation were attainted of Treason, of Felony, &c. and he was as absolute and complete a King, both for matters of judicature, as for grants, &c. before his coronation, as he was after, as it appeareth in the Reports of the 1, 2, 3, 4, 5, 6, and 7 years of the same King. And the like might be produced for many other Kings of this Realm, which for brevity in a case so clear I omit. But which it manifestly appeareth, that by the Laws of England Edition: current; Page: [192] there can be no inter regnum within the same. If the King be seised of land by a defeasible title, and dieth seised, this descent shall toll the entry of him that right hath, as it appeareth by 9 Edw. 4. 51. But if the next King had it by succession, that should take away no entry, as it appeareth by Littleton fol. 97. If a disseisor of an infant convey the land to the King who dieth seised, this descent taketh away the entry of the Infant, as it is said in 34 Hen. 6. fol. 34. 45. lib. Ass. pl. 6. Plow. Com. 234. where the case was: King Henry the third gave a Mannor to his brother the Earl of Cornwall in tail (at what time the same was a fee simple conditional) King Henry the third dyed, the Earl before the Statute of Donis conditional’ (having no issue) by deed exchanged the Mannor with warranty for other lands in fee, and died, without issue, and the warranty and assets descended upon his nephew King Edward the first; and it was adjudged, that this warranty and assets, which descended upon the natural person of the King, barred him of the possibility of reverter. In the reign of Edward the second the Spencers, the father and the son, to cover the Treason hatched in their hearts, invented this damnable and damned opinion, That homage and oath of ligeance was more by reason of the King’s Crown (that is, of his politic capacity) than by reason of the person of the |Edition: Sheppard2003; Page: [11 b] King, upon which opinion they inferred execrable and detestable consequences: 1. If the King do not demean himself by reason in the right of his Crown, his lieges are bound by oath to remove the King: 2. Seeing that the King could not be reformed by suit of Law that ought to be done per aspert.98 3. That his lieges be bound to govern in aid of him, and in default of him. All which were condemned by two Parliaments, one in the reign of Edward the second called Exilium Hugonis le Spencer, and the other in Anno 1. Ed. 3. cap 1. Bracton lib. 2. de acquirendo rerum dominio,99 c. 24. fol 55, saith thus, Est enim corona Regis facere justitiam et judic’, et tenere pacem, et sine quibus corona consistere non potest nec tenere; hujusmodi autem jura sive jurisdictiones ad personas vel tenementa transferri non poterunt, nec a privata persona possideri, nec usus nec executio juris, nisi hoc datum fuit ei desuper, sicut jurisdictio delegata delegari non poterit quin ordinaria remaneat cum ipso Rege. Et lib. 3. de actionibus, cap. 9. fol. 107. Separare autem debet Rex, cum sit Dei vicarius in terra, Edition: current; Page: [193] jus ab injuria, oequam ab iniquo, ut omnes sibi subjecti honeste vivant, et quod nullus alium laedat, et quod unicuique quod suum fuerit recta contributione reddatur.100 In respect whereof one saith, That Corona est quasi cor ornans, cujus ornamenta sunt misericordia et justicia.101 And therefore a King’s Crown is an Hieroglyphick of the Lawes, where Justice, &c. is administered; for so saith P. Val. lib. 41. pag. 400. Coronam dicimus legis judicium esse, propterea quod certis est vinculis complicata, quibus vita nostra veluti religata coercetur.102 Therefore if you take that which is signified by the Crown, that is, to do Justice and Judgment, to maintain the Peace of the Land, &c. to separate right from wrong, and the good from the ill; that is to be understood of that capacity of the King, that in rei veritate103 hath capacity, and is adorned and indued with indowments as well of the soul as of the body, and thereby able to doe Justice and Judgment according to right and equity, and to maintain the peace, &c. and to find out and discern the truth, and not of the invisibleandimmortal capacity that hath no such indowments; for of itself it hath neither soul nor body. And where divers Books and Acts of Parliament speak of the Ligeance of England, as 31 Edw. 3. tit. Cosinage 5. 42 Edw. 3. 2. 13 Edw. 3. tit. Br. 677. 25 Edw. 3. Statut. de natis ultra mare. All these and other speaking briefly in a vulgar manner (for loquendum ut vulgus104) and not pleading (for sentiendum ut docti105) are to be understood of the Ligeance due by the people of England to the King; for no man will affirm, that England itself, taking it for the Continent thereof, doth owe any |Edition: Sheppard2003; Page: [12 a] ligeance or faith, or that any faith or ligeance Edition: current; Page: [194] should be due to it: but it manifestly appeareth, that the ligeance or faith of the Subject is proprium quarto modo,106 to the King, omni, soli, et semper.107 And oftentimes in the Reports of our Book cases, and in Acts of Parliament also, the Crown or Kingdome is taken for the King himself, as in Fitzh.i.e. Of the politic capacity. Natur. Brev. fol. 5. Tenure in capite108 is a Tenure of the Crown, and is a Seignorie in grosse, that is, of the person of the King: and so is 30 Hen. 8. Dyer fol. 44, 45. a Tenure in chief, as of the Crown, is merely a Tenure of the person of the King, and therewith agreeth 28 Henry 8. tit. Tenure Br. 65. The Statute of 4 Hen. 5. cap. ultimo gave Priors aliens, which were conventual to the King and his heirs, by which gift saith 34 Hen. 6. 34. the same were annexed to the Crown. And in the said Act of 25 Edw. 3. whereas it is said in the beginning, within the Ligeance of England, it is twice afterward said in the same Act within the Ligeance of the King, and yet all one Ligeance due to the King. So in 42 Edw. 3. fol. 2. where it is first said, the Ligeance of England, it is afterward in the same case called, the Ligeance of the King; wherein though they used several manner and phrases of speech, yet they intended one and the same Ligeance. So in our usual Commission of Assise, of Gaol delivery, of Oyer and Terminer, of the Peace, &c. power is given to execute Justice, Secundum legem et consuetudinem regni nostri Angliae;109 and yet Littleton lib. 2. in his chapter of Villenage, fol. 43. in disabling of a man that is attainted in a Praemunire110 saith, That the same is the King’s Law; and so doth the Register in the Writ of ad jura regia111 style the same.The reasons wherefore the King by judgment of law with a politic capacity.

The reasons and cause wherefore by the policy of the Law the King is a body politique, are three, viz. 1. causa majestatis,112 2. causa necessitatis,113 and 3. causa utilitatis.114 First, causa majestatis, the King cannot give or take but by matter of Record for the dignity of his person. Secondly, causa necessitatis,Edition: current; Page: [195] as to avoyd the attainder of him that hath right to the Crown, as it appeareth in 1 Hen. 7. 4. lest in the interim there should be an Interregnum,115 which the Law will not suffer. Also by force of this politique capacity, though the King be within age, yet may he make Leases and other Grants, and the same shall bind him; otherwise his Revenue should decay, and the King should not be able to reward service, &c. Lastly, causa utilitatis, as when lands and possessions descend from his collateral Ancestors, being Subjects, as from the Earl |Edition: Sheppard2003; Page: [12 b] of March, &c. to the King, now is the King seised of the same in jure coronae,116 in his politique capacity; for which cause the same shall go with the Crown; and therefore, albeit Queen Elizabeth was of the half blood to Queen Mary, yet she in her body politique enjoyed all those fee simple lands, as by the Law she ought, & no collateral cousin of the whole blood to Queen. Mary ought to have the same. And these are the causes wherefore by the policy of the Law the King is made a body politique: So as for these special purposes the Law makes him a body politique, immortal, and invisible, whereunto our liegance cannot appertain. But to conclude this point, our liegance is due to our natural liege Sovereign, descended of the blood Royal of the Kings of this Realm. And thus much of the first general part de Ligeantiâ.117

De legibus. The second general part.Now followeth the second part, de Legibus, wherein these parts were considered: First, That the ligeance or faith of the Subject is due unto the King by the Law of Nature: Secondly, That the Law of Nature is part of the Law of England: Thirdly, That the Law of Nature was before any Judicial or Municipal Law: Fourthly, That the Law of Nature is Immutable.

The Law of Nature.The Law of Nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna,118 the Moral Law, called also the Law of Nature. And by this Law, written with the finger of God in the heart of man, were the people of God a long time governed, before that Law was written by Moses, who was the first Reporter or Writer of Law in the world. The Apostle inthe second Chapter to the Romans saith, Cum enim gentes quae legem non habent naturaliter ea Edition: current; Page: [196] quae legis sunt faciunt.119 And this is within that commandment of the Moral Law, Honora patrem,120 which doubtless doth extend to him that is pater patriae121 And the Apostle saith, Omnis anima potestatibus sublimioribus subdita sit.122 And these be the words of the great Divine, Hoc Deus in Sacris Scripturis jubet. hoc lex naturae dictari, ut quilibet subditus obediat superio,123 And Aristotle, Nature’s Secretary, Lib. 5. Aethic. saith, That jus naturale est, quod apud omnes homines eandem habet potentiam.124 And herewith doth agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8, 12, 13, and 16. Doctor and Student, cap. 2. and 4. And the reason hereof is, for that God and Nature is one |Edition: Sheppard2003; Page: [13 a] to all, and therefore the Law of God and Nature is one to all. By this Law of Nature is the Faith, Ligeance, and Obedience of the Subject due to his Sovereign or Superiour. And Aristotle 1. Politicorum proveth, that to Command and to Obey is of Nature, and that Magistracy is of Nature: For whatsoever is necessary and profitable for the preservation of the society of man, is due by the Law of nature: But Magistracy and Government are necessary and profitable for the Preservation of the society of man; therefore Magistracy and Government are of Nature. And herewith accordeth Tully lib. 3. de legibus, Sineimperio nec domus ulla, nec civitas, nec gens, nec hominum universum genus stare, nec ipse denique mundus potest.125 This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws. And certain it is, That before Judicial or Municipal Laws were made, Kings did decide causes according to natural equity, and were not tied to any rule or formality of Law, but did dare jura.126 And this appeareth by Fortescue, cap. 12 & 13. and by Virgil that Philosophical Poet, 7th Aeneid.

And Pomponius lib. 2. cap. de origine juris, affirmeth, that in Tarquinius Superbus’s time there was no Civile Law written, and that Papirius reduced certain observations into writing, which was called Jus Civile Papirianum. Now the reason wherefore Laws were made and published, appeareth in Fortescue cap. 13. and in Tully lib. 2. officiorum: At cum jus aequabile ab uno viro homines non consequerentur, inventae sunt leges.129 Now it appeareth by demonstrative reason, that Ligeance, Faith, and Obedience of the Subject to the Sovereign, was before any Municipal or Judicial Laws: 1. For that Government and Subjection were long before any Municipal or Judicial Laws: 2. For that it had been in vain to have prescribed Laws to any, but to such as owed Obedience, Faith, and Ligeance before, in respect whereof they were bound to obey and observe them: Frustra enim |Edition: Sheppard2003; Page: [13 b]feruntur leges nisi subditis et obedientibus.130 Seeing then that Faith, Obedience, and Ligeance, are due by the Law of Nature, it followeth that the same cannot be changed or taken away; for albeit Judicial or Municipal Laws have inflicted and imposed in several places, or at several times, divers and several punishments and penalties for breach or not observance of the Law of Nature (for that law onely consisted in commanding or prohibiting, without any certain punishment or penalty), yet the very Law of Nature itself, never was nor could be altered or changed. And therefore it is certainly true, that Jura naturalia sunt immutabilia.131 And herewith agreeth Bracton lib. 1. cap. 5. and Doctor and Student cap. 5 and 6. And this appeareth plainly and plentifully in our Books.

Edition: current; Page: [198]

If a man hath a Ward by reason of a Seigniory, and is Outlawed, he forfeiteth the Wardship to the King: But if a man hath the Wardship of his own Son or Daughter, which is his heir apparent, and is Outlawed, he doth not forfeit this Wardship; for nature hath annexed it to the person of the Father, as it appeareth in 33 Hen. 6. 55. Et bonus Rex nihil a bono patre differt, et patria dicitur a patre, quia habet communem patrem, qui est pater patriae.132 In the same manner, maris et foeminae conjunctio est de jure naturae,133 as Bracton in the same book and chapter, and St. Germin in his book of the Doctor and Student, cap. 5., do hold. Now, if he that is attainted of Treason or Felony, be slain by one that hath no authority, or executed by him that hath authority, but pursueth not his warrant, in this case his eldest son can have no appeal, for he must bring his appeal as heir, which being ex provisione hominis,134 he loseth it by the attainder of his Father: but his Wife (if any he have) shall have an appeal, because she is to have her appeal as Wife, which she remaineth notwithstanding the attainder, because maris et foeminae conjunctio135 is de jure naturae,136 and therefore (it being to be intended of true and right Matrimony) is indissoluble: and this is proved by the book in 33 Hen. 6. fol. 57. So if there be Mother and Daughter, and the Daughter is attainted of felony, now cannot she be heir to her Mother for the cause aforesaid; yet after her attainder if she kill her Mother, this is Paricide and Petit treason; for she remaineth her daughter, for that is of nature, and herewith agreeth 21 Edw. 3. 17. b. If a man be attainted of Felony or Treason, he hath lost the King’s legal protection, for he is thereby utterly disabled to sue any action real or personal (which is a greater disability than an alien in league hath) and yet such a person so attainted hath not lost that |Edition: Sheppard2003; Page: [14 a] protection which by the law of nature is given to the King; for that is indelebilis et immutabilis,137 andtherefore the King may protect and pardon him, and if any man kill him without warrant, he shall be punished by the Law as a Manslayer; and thereunto accordeth 4 Edw. 4. and 35 Hen. 6. 57. 2 Ass. pl. 3. By the statute of 25 Edw. Edition: current; Page: [199] 3. cap. 22. a man attainted in a Praemunire,138 is by expresse words out of the King’s protection generally; and yet this extendeth onely to legal protection, as it appeareth by Littleton, fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him; and therefore, notwithstanding that Statute, the King may protect and pardon him. And though by that Statute it was further enacted, That it should be done with him as with an enemy, by which words any man might have slain such a person (as it is holden in 24 Hen. 8. tit. Coron. Br. 197.) until the statute made anno 5 Eliz. cap. 1. yet the King might protect and pardon him. A man Outlawed is out of the benefit of the Municipal Law; for so saith Fitzh. Nat. Brev. 161. Utlagatus est quasi extra legem positus:139 and Bracton lib. 3. tract. 2. cap 11. saith, that caput geret lupinum;140 and yet is he not out either of his natural ligeance, or of the King’s natural protection; for neither of them are tyed to Municipal Laws, but is due by the Law of Nature, which (as hath been said) was long before any Judicial or Municipal Laws. And therefore if a man were Outlawed for Felony, yet was he within the King’s natural protection, for no man but the Sheriff could execute him, as it is adjudged in 2 lib. Ass. pl. 3. Every subject is by his natural Ligeance bound to obey and serve his Sovereign, &c. It is enacted by the Parliament of 23 Hen. 6. that no man should serve the King as Sheriff of any County, above one year, and that, notwithstanding any clause of non obstante141 to the contrary, that is to say, notwithstanding that the King should expressly dispense with the said Statute: howbeit it is agreed in 2 Hen. 7. that against the expresse purview of that act, the king may by a special Non obstante dispense with that act, for that the act could not barr the King of the service of his subject, which the law of nature did give unto him. By these and many other cases that might be cited out of our books, it appeareth, how plentiful the authorities of our Laws be in this matter. Wherefore to conclude this point (and to exclude all that hath been or could be objected against it) if the obedience and ligeance of the subject to his Sovereign be due by the Law of nature, if that law be parcel of the Laws, as well of England, as of all other nations, and is immutable, and that Postnati142Edition: current; Page: [200] and we of England are united by birth right, |Edition: Sheppard2003; Page: [14 b] in obedience and ligeance (which is the true cause of natural subjection) by the law of nature;Itfolloweth, that Calvin the Plaintiff being born under one ligeance to one King,i.e. of Scotland. cannot be an alien born; And there is great reason, that the Law of nature should direct this case, wherein five natural operations are remarkable; First the King hath the crown of England by birth right, being naturally procreated of the blood royal of this Realm; Secondly, Calvin the Plaintiff naturalized by procreation and birth right, since the descent of the Crown of England; Thirdly, ligeance and obedience of the subject to the Sovereign, due by the law of nature; Fourthly, protection and government due by the law of nature; Fifthly, this case, in the opinion of divers, was more doubtful in the beginning, but the further it proceeded, the cleerer and stronger it grew; and therefore the doubt grew from some violent passion, and not from any reason grounded upon the law of nature, quia quanto magis violentus motus (qui fit contra naturam) appropinquat ad suum finem, tanto debiliores et tardiores sunt ejus motus; sed naturalis motus, quanto magis appropinquat at suum finem, tanto fortiores et velociores sunt ejus motus.143 Hereby it appeareth how weak the objection grounded upon the rule of Quanto duo jura concurrunt in una personû, &c.144 is: For that rule holdeth not in personal things, that is, when two persons are necessarily and inevitably required by law, (as in the case of an alien born there is;) and therefore no man will say, that now the King of England can make warr or league with the King of Scotland, et sic de caeteris:145 and so in case of an alien born, you must of necessity have two several ligeances to two several persons. And to conclude this point concerning laws, Non adservatur diversitas regnor’ sed regnant’, non patriarum, sed patrum patriar’, non coronarum, sed coronatorum, non legum municipalium, sed regum majestatum.146 And therefore thus were directly and clearly answered, as well the objections drawn from the severalty of the kingdoms, seeing there is but one head of both, and the Postnati and us joyned in ligeance to that one head, which is copula et tanquam Edition: current; Page: [201] oculus147 of this case; as also the distinction of the Laws, seeing that ligeance of the subjects of both kingdoms, is due to their Sovereign by one law, and that is the Law of nature.

The 3d general part concerning both kingdoms.For the third, It is first to be understood, that as the law hath wrought four unions, so the law doth still make four separations. The first union is of both kingdoms under one natural liege sovereign King, and so acknowledged by the Act of |Edition: Sheppard2003; Page: [15 a] Parliament of recognition. The second is an union of ligeance and obedience of the subjects of both kingdoms, due by the law of nature to their Sovereign: And this union doth suffice to rule and over rule the case in question; and this in substance is but a uniting of the hearts of the subjects of both kingdoms one to another, under one head and sovereign. The third union is an union of protection of both kingdoms, equally belonging to the subjects of either of them: And therefore the two first arguments or objections drawn from two supposed several ligeances, were fallacious, for they did disjungere conjungenda.148 The fourth union and conjunction is, of the three Lions of England, and that one of Scotland, united and quartered in one escutcheon.

Concerning the separations yet remaining: First, England and Scotland remain several & distinct kingdoms; 2. They are governed by several judicial or municipal laws; 3. They have several distinct and separat Parliaments; 4. Each kingdom hath several Nobilities; For albeit a Postnatus in Scotland, or any of his posterity, be the heir of a Nobleman of Scotland, and by his birth is legitimated in England, yet he is none of the Peers or Nobility of England: for his natural ligeance and obedience, due by the law of nature, maketh him a subject, and no alien within England: but that subjection maketh him not noble within England; for that Nobility had his original by the King’s creation, and not of nature. And this is manifested by express authorities, grounded upon excellent reasons in our books. If a Baron, Viscount Earl, Marquess, or Duke of England, bring any action real or personal, andthedefendantpleadeth in abatement of the writ, that he is no Baron, Viscount, Earl, &c. and thereupon the demandant or Plaintiff taketh issue; this issue shall not be tried by Jury, but by the record of Parliament, whether he or his ancestor, whose heir he is, were called to serve there as a Peer, and one of the Nobility of the Realm. And so are our books adjudged in 22 Ass. 24. 48 Edw. 3. 30. 35 H. 6. 40. 20 Edition: current; Page: [202] Eliz. Dyer. 360. Vide in the 6 part of my Reports, in The Countess of Rutland’s case. So as the man, that is not de jure a Peer, or one of the Nobility, to serve in the upper house of the Parliament of England, is not in the legal proceedings of law accounted Noble within England. And therefore if a Countee of France or Spain, or any other foreign kingdom, should come into England, he should not here sue, or be sued, by the name of Countee, &c. for that he is none of the Nobles that are members of the |Edition: Sheppard2003; Page: [15 b] upper house of the Parliament of England: and herewith agree the book cases of 20 Edw. 4. 6. and 11 Edw. 3. tit. Bre. 473. Like law it is, and for the same reason, of an Earl or Baron of Ireland, he is not any Peer, or of the Nobility of this Realm: and herewith agreeth the book in 8 Rich. 2 tit. Proces. pl. ultim. where in an action of Debt process of Outlawry was awarded against the Earl of Ormond in Ireland; which ought not to have been, if he had been noble here. Vide Dyer 20 Eliz. 360.

But yet there is a diversity in our books worthy of observation, for the highest and lowest dignities are universal; for if a King of a forein nation come into England, by the leave of the King of this Realm (as it ought to be) in this case he shall sue and be sued by the name of a King: and herewith agreeth 11 Edw. 3. tit. Br. 473. where the case was, that Alice, which was the wife of R. de O. brought a writ of Dower against John Earl of Richmond, and the writ was, Praecip. Johann’ Comiti Richmondiae custodi terr’ et haeredis149 of William the son of R. de. O. the tenant pleaded, that he is Duke of Britain, not named Duke, judgment of the writ? But it is ruled, that the writ was good, for that the Dukedom of Brittain was not within the Realm of England. But there it is said, that if a man bring a writ against Edward Baliol, and name him not King of Scotland, the writ shall abate for the cause aforesaid. And hereof there is a notable precedent in Fleta lib. 2. cap. 14. where treating of the jurisdiction of the King’s Court of Marshalsea it is said, Et haec omnia ex officio suo licite facere poterit (ss. seneschal’ aul’ hospitii Regis) non obstantealicujus libertate, etiam in alieno regno dum tamen reus in hospitio Regis poterit inveniri secundum quod contigit Paris. anno 14 Ed. 1. de Engelramo de Nogent capto in hospitio Regis Angl’ (ipso rege tunc apud Parisiam existente) cum discis argenti furatis recenter super facto, rege Franc’ tunc presente, et unde licet curia Regis Franc’ de praed’ latrone per castellanum Paris. petita fuerit, habitis hic et inde tractatibus in Consilio Regis Franc’, tandem consideratum fuit; quod Rex Angl’ Edition: current; Page: [203] illa regia praerogativa, et hospitii sui privilegio uteretur, et gauderet, qui coram Roberto Fitz-John milite tunc hospitii Regis Angl’ seneschallo de latrocinio convictus, per considerationem ejus cur. fuit suspensus in patibulo sancti Germani de Pratis.150 Which proveth, that though the king be in forein kingdom, yet he is judged in law a king there. The other part of the said diversity, is proved by the book case in 20 Edw. 4. fol. 6. where, in a writ of debt brought by Sir John Douglas knight, against Elizabeth. Molford, the defendant, demanded judgment of the writ, for that |Edition: Sheppard2003; Page: [16 a] the Plaintiff was an Earl of Scotland, but not of England; and that our Sovereign Lord the king had granted unto him safe conduct, not named by his name of dignity, judgment of the writ, &c. And there Justice Littleton giveth the rule: the Plaintiff (saith he) is an Earl in Scotland, but not in England; and if our Sovereign Lord the king grant to a Duke of France a safe conduct to merchandise, and enter into his Realm, if the Duke cometh and bringeth merchandise into this land, and is to sue an action here, he ought not to name himself Duke, for he is not a Duke in this land, but only in France. And these be the very words of that book case: out of which I collect three things. First, that the Plaintiff was named by the name of a knight, wheresoever he received that degree of dignity. Vide 7 Hen. 6. 14 b. accord. Second. That an Earl of another nation or kingdom is no Earl (to be so named in legal proceedings) within this Realm: and herewith agreeth the book of 11 Edw. 3. The Earl of Richmond’s case before recited. Third. That albeit the king by his Letters Patents of safe conduct doe name him Duke, yet that appellation maketh him no Duke, to sue or to be sued by that name within England: So as the law in these points (apparent in our books) being observed, and rightly understood it appeareth how causeless their fear was that the adjudging of the Plaintiff to be no alien should make a confusion of the Nobilities of either kingdom.

Edition: current; Page: [204]

The 4th general Part. De alienigena.Now are we in order come to the fourth Noun (which is the fourth general part) Alienigena; wherein six things did fall into consideration. 1. Who was Alienigena, an alien born by the laws of England. 2. How many kinds of aliens born there were. 3. What incidents belonged to an alien born. 4. The reason why an alien is not capable of inheritance or freehold within England. 5. Examples, resolutions, and judgments, reported in our books in all succession of ages, proving the Plaintiff to be no alien. 6. Demonstrative conclusions upon the premises, approving the same.

Who is an alien.1. An Alien is a subject that is born out of the ligeance of the king, and under the ligeance of another, and can have no real or personal action for or concerning land; but in every such action the tenant or defendant may plead that he was born in such a Country which is not within ligeance of the king, and demand judgment if he shall be answered. And this is in effect the description which Littleton himself maketh, lib. 2. cap. 14. Villen. fol. 43. Alienigena est alienae gentis seu alience ligeantiae, qui etiam |Edition: Sheppard2003; Page: [16 b]dicitur peregrinus, alienus, exoticus, extraneus, &c. Extraneus est subditus, qui extra terram, i.e. potestatem regis natus est.151 And the usual and right pleading of an alien born doth lively and truly describe and express what he is. And therein two things are to be observed; 1. That the most usual and best pleading in this case is, both exclusive and inclusive, viz. extra ligeantiam domini Regis, &c. et infra ligeantiam alterius Regis,152 as it appeareth in 9 Ed. 4. 7. Book of Entries, fol. 244, &c. which cannot possibly be pleaded in this case, for two causes; First for that one king is Sovereign of both kingdoms; second, One ligeance is due by both to one Sovereign, and in case of an alien there must of necessity be several kings, and several ligeances. Secondly, no pleading was ever extra regnum,153 or extra legem,154 which are circumscribed to place, but extra ligeantiam,155 which (as it hath been said) is not local or tied to any place.

It appeareth by Bracton lib. 3. tract. 2. cap. 15. fol. 134. that Canutus the Danish king, having settled himself in this kingdom in peace, kept notwithstanding (for the better continuance there of) great Armies within this Realm. Edition: current; Page: [205] The Peers and Nobles of England, distasting this government by arms and armies, (Odimus accipitrem quia semper vivit in armis)156 wisely and politikely persuaded the king, that they would provide for the safety of him and his people, and yet his armies, carrying with them many inconveniencies, should be withdrawn; And therefore offered, that they would consent to a law, that whosoever should kill an alien, and be apprehended, and could not acquit himself, he should be subject to justice: but if the manslayer fled, and could not be taken, then the Town where the man was slain should forfeit 66 marks unto the King: and if the Town were not able to pay it, then the Hundered should forfeit and pay the same unto the King’s treasure; whereunto the King assented. This law was penned Quicunque occiderit Francigenam, &c.157 not excluding other aliens, but putting Francigena, a Frenchman for example, that others must be like unto him, in owing several ligeance to a several Sovereign, that is, to be extra ligeantiam Regis Angl’,158 and infra ligeanitiam alterius Regis.159 And it appeareth before out of Bracton and Fleta, that both of them use the same examples (in describing of an alien) ad fidem Regis Franciae.160 And it was holden, that except it could be proved that the party slain was an Englishman, that he should be taken for an alien; and this was called Englesherie, Englesheria, that is, a proof that the party slain was an Englishman. (Hereupon |Edition: Sheppard2003; Page: [17 a] Canutus presently withdrew his armies, and within a while after lost his crown, and the same was restored to his right owner.) The said law of Englesherie continued until 14 Edw. 3. cap. 4. and then the same was by Act of Parliament ousted and abolished. So amongst the laws of William the First, (published by Master Lambert. fol. 125.) Omnis Francigena161 (there put for example as before is said, to expresse what manner of person alienigena should be) qui tempore Edvardi propinqui nostri fuit particeps legum et consuetudinum Anglorum162 (that is, made denizen) quod dicunt ad scot et lot persolvat secundum legem Anglorum.163

Edition: current; Page: [206]

How many kinds of aliens there be.Every man is either Alienigena, an Alien born, or subditus,164 a subject born. Every Alien is either a friend that is in league, &c. or an enemy that is in open war. &c. Every Alien enemy is either pro tempore, temporary for a time, or perpetuus, perpetual, or specialiter permissus, permitted especially. Every subject is either natus, born, or datus, given or made: And of these briefly in their order. An alien friend, as at this time, a German, a Frenchman, a Spaniard, &c. (all the Kings and Princes in Christendom being now in league with our Sovereign, but a Scot being a Subject, cannot be said to be a friend, nor Scotland to be solum amici165) may by the Common Law have, require, and get within this Realm, by gift, trade, or other lawfull means, any treasure, or goods personal whatsoever, as well as any Englishman, and may maintain any action for the same: But Lands within this Realm, or houses (but for their necessary habitation onely) Alien friends cannot acquire, or get, nor maintain any action real or personal, for any land or house, unless the house be for their necessary habitation. For if they should be disabled to acquire and maintain these things, it were in effect to deny unto them trade and traffique, which is the life of every Island. But if this Alien become an enemy (as all Alien friends may) then is he utterly disabled to maintain any action, or get any thing within this Realm. And this is to be understood of a temporary Alien, that being an enemy may be a friend, or becoming a friend may be an enemy. But a perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action, or get any thing within this Realm. All Infidels are in Law perpetui inimici166 perpetual enemies (for the Law presumes not that they will be converted, that being remota potentia,167 a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual |Edition: Sheppard2003; Page: [17 b] hostility, and can be no peace; for as the Apostle saith, 2 Cor. 15. Quae autem conventio Christi ad Belial, aut quae pars fideli cum infideli, and the Law saith, Judaeo Christianum nullum serviat mancipium, nefas enim est quem Christus redemit blasphemum Christi in servitutis vinculis detinere. Register 282. Infideles sunt Christi et Christianorum inimici.168 And Edition: current; Page: [207] herewith agreeth the Book in 12 Hen. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all.

By what laws kingdoms gotten by conquest, &c. shall be governed.And upon this ground there is a diversity between a conquest of a kingdom of a Christian King, and the conquest of a kingdom of an Infidel; for if a King come to a Christian kingdom by conquest, seeing that he hath vitae et necis potestatem,169 he may at his pleasure alter and change the Laws of that kingdom, but untill he doth make an alteration of those Laws, the ancient Laws of that kingdom remain. But if a Christian King should conquer a kingdom of an Infidel, and bring them under his subjection, there ipso facto170 the Laws of the Infidel are abrogated, for that they be not only against Christianity, but against the Law of God and of Nature, contained in the Decalogue; and in that case, untill certain Laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity, in such sort as Kings in ancient time did with their kingdoms, before any certain Municipal Laws were given as before hath been said. But if a king have a kingdom by title of descent, there, seeing by the Laws of that kingdom he doth inherit the kingdom, he cannot change those Laws of himself, without consent of Parliament. Also if a king hath a Christian kingdom by conquest,Ireland. as King Henry the second had Ireland, after King John had given unto them, being under his obedience and subjection, the Laws of England for the government of that country, no succeeding king could alter the same without Parliament. And in that case while the Realm of England and that of Ireland were governed by several Laws, any that was born in Ireland was no Alien to the Realm of England. In which precedent of Ireland three things are to be observed: 1. That then there had been two descents, one from Henry the second to King Richard the first, and from Richard to King John, before the alteration of the Laws. 2. That albeit Ireland was a distinct Dominion, yet the title thereof being by Conquest, the same by judgment of law might by expresse words be bound by the Parliaments of England. 3. That albeit no |Edition: Sheppard2003; Page: [18 a] reservation were in King John’s Charter, yet by judgment of Law a Writ of Error did lye in the king’s bench in England, of an erroneous Judgment in the king’s bench of Ireland. Furthermore, in the Edition: current; Page: [208] case of the conquest of a Christian kingdom, as well those that served in Wars at the Conquest, as those that remained at home for the safetie and peace of their country, and other the King’s subjects, as well Antenati as Postnati, are capable of Lands in the kingdom or country conquered, and may maintain any real action, and have the like privileges and benefits there, as they may have in England.

The third kind of enemy is, inimicus permissus, an Enemy that cometh into the Realm by the King’s safe conduct, of which you may read in the Register fol. 25. Book of Entries, Ejectione Firmae 7, 32 Hen. 6. 23. &c. Now what a Subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de subdito dato,171 of a donaison;172 for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee,173 one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject. And it appeareth before out of the laws of King William the First of what antiquity the making of denizens by the King of England hath been.

Of the incidents to an alien.3. There be regulary (unlesse it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the king. 2. That the place of his birth be within the king’s dominion. And 3. the time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom, that was born under the ligeance of a king of another kingdom, albeit afterwards one kingdom descend to the king of the other. For the first, it is termed actual obedience, because though the King of England hath absolute right to other kingdoms or dominions, as France, Aquitain, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are Subjects to the king of England. 2. The place is observable, but so as many times ligeance or obedience without any place within the king’s dominions may make a subject born, but any place within the king’s dominions may make a subject born, but any place within the king’s dominions without obedience can never produce a natural subject. And therefore if any of the king’s Ambassadors in forein Nations, have children there of their wives, being English women, by Edition: current; Page: [209] the Common Laws of England they are natural born subjects, and yet they are born out of the king’s dominions. But if Enemies should come into any of the king’s dominions and surprise any Castle or Fort, and |Edition: Sheppard2003; Page: [18 b] possess the same by hostility, and have issue there, that issue is no subject to the king, though he be born within his dominions, for that he was not born under the king’s ligeance or obedience. But the time of his birth is of the essence of a subject born; for he cannot be a subject to the king of England, unlesse at the time of his birth he was under the ligeance and obedience of the king. And that is the reason that Antenati in Scotland (for that at the time of their birth they were under the ligeance and obedience of another king) are Aliens born, in respect of the time of their birth.

Wherefore an alien born is not capable of lands.4. It followeth next in course to set down the reasons, wherefore an Alien born is not capable of inheritance within England, and that he is not for three reasons. 1. The secrets of the Realm might thereby be discovered. 2. The revenues of the Realm (the sinews of War, and Ornament of Peace) should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the Realm. Which three reasons do appear in the Statutes of 2 Hen 5. cap. and 4 Hen. 5. cap. ultimo. But it may be demanded, Wherein doth that destruction consist; Whereunto it is answered; First, it tends to destruction tempore belli;174 for then strangers might fortify themselves in the heart of the Realm, and be ready to set fire on the Commonwealth, as was excellently shadowed by the Trojan horse in Virgil’s second Book of his Aeneid, where a very few men in the heart of the City, did more mischief in a few hours, than ten thousand men without the walls in ten years. Secondly, tempore pacis,175 for so might many aliens born get a great part of the inheritance and freehold of the Realm, whereof there shall follow a failure of Justice (the supporter of the Commonwealth) for that Aliens born cannot be returned of Juries for the trial of Issues between the king and the subject, or between subject and subject. And for this purpose, and many other see a Charter (worthy of observation) of King Edw. and the third written to Pope Clement, Datum apud Westm’ 26. die Sept. ann. regni nostri Franciae 4 regni vero Angliae 17.176

Edition: current; Page: [210]

Examples and authorities in law.5. Now are we come to the Examples, Resolutions, and Judgments offormer times; wherein two things are to be observed, First, how many Cases in our Books do over-rule this Case in question for ubi eadem ratio ibi idem jus, et de similibus idem est judicium.177 2. That for want of an express Text of Law in terminis terminantibus178 and of examples and precedents in like cases (as was objected by some) we are driven to determine the question by natural reason: for it was said, si cesset lex scripta id custodiri |Edition: Sheppard2003; Page: [19 a]oportet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, recurrendum est ad rationem.179 But that receiveth a threefold answer: First, that there is no such rule in the Common or Civile Law; but the true rule of the Civile Law is, Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, tunc id quod proximum et consequens ei est, et si id non appareat, tunc jus quo urbs Romana utitur, servari oportet.180 Secondly, if the said imaginative rule be rightly and legally understood, it may stand for truth: for if you intend ratio for the legal and profound reason of such as by diligent study and long experience and observation are so learned in the Laws of this Realm, as out of the reason of the same they can rule the case inquestion, in that sense the said rule is true: But if it be intended of the reason of the wisest man that professeth not the Laws of England, then (I say) the rule is absurd and dangerous; for cuilibet in sua arte perito est credendum et quod quisque norit in hoc se exerceat. Et omnes prudentes illa admittere solent quae probantur iis qui in sua arte bene versati sunt,181 Arist. 1. Topicorum, cap. 6. Thirdly, there be multitudes of Examples, Precedents, Judgments, and Resolutions in the Laws of England, the true and unstrained reason whereof doth decide this question; for example: the Dukedom of Acquitain, whereof Gascoin was parcel, and the Earldom of Poitiers, came to King Henry the second Edition: current; Page: [211] by the marriage of Elianor, daughter and heir of William Duke of Acquitain, and Earl of Poitiers, which descended to Richard the First, Henry the Third, Edward the First, Edward the Second, Edward the Third 3., &c. In 27 lib. Ass. pl. 48. in one case there appear two Judgments and one Resolution to be given by the Judges of both Benches in this case following. The possessions of the Prior of Chelsey in the time of war were seised into the king’s hands, for that the Prior was an alien born: The Prior by petition of right sued to the king, and the effect of his Petition was, That before he came Prior of Chelsey, he was Prior of Andover, and whiles he was Prior there, his possessions of that Priory were likewise seised for the same cause, supposing that he was an alien born; whereupon he sued a former petition, and alleged that he was born in Gascoin within the ligeance of the king: which point being put in Issue and found by Jury to be true, it was adjudged he should have restitution of his possessions generally without mentioning of advowsons. After which restitution, one of the |Edition: Sheppard2003; Page: [19 b] said advowsons became voyd, the Prior presented, against whom the king brought a Quare Impedit,182 wherein the king was barred, and all this was contained in the later petition. And the Book saith, that the Earle of Arundel, and Sir Guy de B. came into the Court of Common Pleas, and demanded the opinion of the Judges of that Court concerning the said Case, who resolved, that upon the matter aforesaid the king had no right to seize. In which case, amongst many notable points, this one appeareth to be adjudged and resolved, that a man born in Gascoin under the king’s ligeance, was no alien born, as to lands and possessions within the Realm of England, and yet England and Gascoin were several and distinct countries. 2. Inherited by several and distinct titles. 3. Governed by several and distinct Municipal Laws, as it appeareth amongst the Records in the Tower, Rot. Vasc. 10. Edw. 1. Num. 7. 4. Out of the extent of the Great Seal of England, and the jurisdiction of the Chancery of England. 5. The like objection might be made for default of tryal, as hath been made against the Plaintiff. And where it was said that Gascoin was no kingdom, and therefore it was not to be matched to the case in hand, it was answered, that this difference was without a diversity as to the case in question; for if the plea in the case at the Bar be good, then without question the Prior had been an alien; for it might have Edition: current; Page: [212] been said, (as it is in the Case at Bar) that he was born extra ligeantiam regis regni sui Angliae, et infra ligeantiam dominii sui Vasconiae,183 and that they were several dominions, and governed by severall Laws: But then such a conceit was not hatched, that a king having several dominions should have several ligeances of his subjects. Secondly, it was answered, that Gascoin wassometime a kingdome, and likewise Millain, Burgundy, Bavaria, Brittain, and others were, and now are become, Dukdoms. Castile, Arragon, Portugal, Barcelona, &c. were sometime Earldoms, afterwards Dukedoms, and now kingdoms. Bohemia and Polonia were sometime dukedoms, and now kingdoms, and (omitting many other, and coming nearer home) Ireland was before 32 Henry the eighth a Lordship, and now is a kingdom, and yet the King of England was as absolute a Prince and Sovereign when he was Lord of Ireland, as now, when he is styled King of the same. 10 Edw. 3. 41. an exchange was made between an Englishman and a Gascoyn, of lands in England and in Gascoin; ergo, the Gascoin was no alien, for then had he not been capable of lands in England, 1 Hen. 4. 1. the King brought a Writ of right of ward against one Sybill, whose husband was exiled into Gascoin; |Edition: Sheppard2003; Page: [20 a]ergo Gascoin is no parcel or member of England, for exilium est patriae privatio, natalis soli mutatio, legum nativarum amissio184 4 Edw. 4. 10. the king directed his Writ out of the Chancery under the Great Seal of England, to the Maior of Burdeaux (a city in Gascoin) then being under the king’s obedience, to certify, whether one that was outlawed here in England, was at that time in the king’s service under him in obsequio Regis185 whereby it appeareth, that the king’s Writ did run into Gascoin, for it is the trial that the common Law hath appointed in that case. But as to other cases, it is to be understood, that there be two kinds of Writs, viz. brevia mandatoria et remedialia, et brevia mandatoria et non remedialia: brevia mandatoria et remedialia,186 as Writs of Right, of Formedon, &c.187 of Debt, Trespasse, &c. and shortly, all Writs real and personal, whereby the party wronged is to recover somewhat, and to be remedied for that wrong Edition: current; Page: [213] that was offered unto him, are returnable or determinable in some Court of Justice within England, and to be served and executed by the Sheriffs, or other ministers of Justice within England; and these cannot by any means extend into any other kingdom, Country, or Nation, though that it be under the king’s actual ligeance and obedience. But the other kind of Writs that are mandatory, and not remedial, are not tyed to any place, but doe follow subjection and ligeance, in what Country or Nation soever the Subject is, as the king’s Writ to command any of his subjects residing in any forein Country to return into any of the king’s own Dominions, Sub fide et ligeantia quibus nobis tenemini.188 And so are the aforesaid mandatory Writs cited out of the Register of Protection for safety of body and goods, and requiring, that if any injury be offered, that the same be redressed according to the Laws and Customs of that place. Vide le Register fol. 26. Stamford Praerog. cap. 12. fol. 39. saith, That men born in Gascoin are inheritable to lands in England. This doth also appear by divers Acts of Parliament: for by the whole Parliament, 39 Edw. 3. cap. 16. it is agreed, that the Gascoins are of the ligeance and subjection of the King. Vide 42 Edw. 3. cap. 2. & 28 Hen. 6. cap. 5. &c.

Guyen, Guienne.Guyen was another part of Aquitain, and came by the same title: and those of Guyen were by act of Parliament in 13 Hen. 4. not imprinted, ex Rot. Parliament. eodem anno,189 adjudged and declared to be no aliens, but able to possess and purchase, &c. lands within this Realm. And so doth Stamford take the law, praerog. c. 12. f. 39. |Edition: Sheppard2003; Page: [20 b] And thus much of the Dukedom of Aquitaine, which (together with the Earldom of Poitiers) came to King Henry the second (as hath been said) by marriage, and continued in the actual possession of the Kings of England by ten descents, viz. from the first year of King Henry the second, unto the two and thirtieth year of King Henry the sixth, which was upon the very point of three hundred years, within which Dutchie there were (as some write) 4. Archbishopricks, 24. Bishopricks, 15. Earldoms, 202 Baronies, and above a thousand Captainships and Bailiwicks; and in all this long time, neither book case nor record can be found wherein any plea was offered to disae any of them that were born there, by forein birth, but the contrary hereof directly appeareth by the said book case of 27 lib. Ass. 48.

Normandy, Normenia, Normandia.The Kings of England had sometimes Normandy under actual ligeance and Edition: current; Page: [214] obedience. The question is then, whether men born in Normandy, after one King had them both, were inheritable to lands in England; and it is evident by our books that they were: for so it appeareth by the declaratory act of 17 Edw. 2. de praerog. Regis, c. 12. that they were inheritable to, and capable of lands in England: for the purview of that Statute is quod Rex habebit escaetas de terris Normannorum, &c.190ergo Normans might have lands in England: et hoc similiter intelligendum est, si aliqua haereditas descendat alicui nato in partibus transmarinis, &c.191 Whereby it appeareth, that they were capable of lands within England by descent. And that this Act of 17 Edw. 2. was but a declaration of the Common Law, it appeareth both by Bracton who (as it hath been said) wrote in the reign of Henry the third, lib. 3. tract. 2. c. 1. f. 116. and by Britton who wrote in 5 Edw. 1. c. 18. that all such lands as any Norman had either by descent or purchase, escheated to the King for their treason, in revolting from their natural liege Lord and Sovereign. And therefore Stamford praerog. cap. 12. fol. 39. expounding the said Statute of 17 Edw. 2. cap. 12. concludeth, that by that chapter it should appear (as ifhehadsaid, it is apparent without question) that all men born in Normandy, Gascoin, Guyen, Anjou, and Brittain, (whiles they were under actual disobedience) were inheritable within this realm as well as Englishmen. And the reason thereof was, for that they were one ligeance due to one Sovereign. And so much (omitting many other authorities) for Normandy: saving I cannot let passe the Isles of Jernsey and Gersey, parts and parcels of the Dukedom of Normandy, yet remaining under the actual ligeance and obedience of the King. I think no man will doubt, but those that are |Edition: Sheppard2003; Page: [21 a] born in Jernsey and Gersey (though those Isles are no parcel of the Realm of England,Guernsey and Jesey. but several dominions, enjoyed by several titles, governed by several laws) are inheritable and capable of any lands within the Realm of England, 1 Edw. 3. fo. 7. Commission to determine the title of lands within the said Isles, according to the Laws of the Isles: and Mich. 41 E. 3. in the Treasury, Quia negotium praed’ nec aliqua alia negotia de insula praed’ emergentia non debent terminari nisi secundum legem insulaepraed’,&c.192Edition: current; Page: [215] And the Register, fol. 22. Rex fidelibus suis de Jernsey et Gersey.193 King William the first brought this Dukedom of Normandy with him, which by five descents continued under the actual obedience of the Kings of England, and in or about the sixth year of King John, the Crown of England lost the actual possession thereof, until King Henry the fifth recovered it again, and left it to King Henry the sixth, who lost it in the 28th year of his reign: wherein were (as some write) one Archbishoprick, and six Bishopricks, and an hundred strong towns and fortresses, besides those that were wasted in warre. Maud the Empresse, the only daughter and heir to Henry the first, took to her second husband Jeffrey Plantaginet, Earl of Anjou, Tourain, and Mayne, who had issue King Henry the second to whom the said Earldom by just titledescended, who, and the kings that succeeded him, stiled themselves by the name of Comes Andeguv,194&c. untill King Edward the third became king of all France: and such as were born within that Earldom, so long as it was under the actual obedience of the King of England, were no aliens, but natural born subjects, and never any offer made that we can find to disable them for forein birth. But leave we Normandy and Anjou, and speak we of the little, but yet ancient and absolute kingdom of the Isle of Man,Man, Mannia. as it appeareth by diverse ancient and authentike records; as taking one for many. Artold King of Man sued to King Henry the third to come into England to conferr with him, and to perform certain things which were due to King Henry the third thereupon King Henry the third 28. Decemb. ann. regn. sui 34, at Winchester, by his letters patents gave license to Artold King of Man, as followeth; Rex omnibus salutem. Sciatis, quod licentiam dedimus, &c. Artoldo Regi de Man veniendo ad nos in Angl’, ad loquend’ nobisc’ et ad faciend’ nobis quod facere debet, et ideo vobis mandamus quod ei Regi in veniendo ad nos iu Angl’, vel ibi morando, vel inde redeundo nullum faciat’ aut fieri permittatis damnum, injur’, molestiam, aut gravamen, vel etiam hominib’ suis quos secum ducet et si aliquid eis forisfact’ fuerit, id eis sine dilat’ faciat’ emendari. In cujus, &c. duratur’ usque ad fest’ S. Mich.195 Wherein |Edition: Sheppard2003; Page: [21 b] 2 things are to be observed; 1. That seeing that Artold King Edition: current; Page: [216] of Man sued for a licence in this case to the King, it proveth him an absolute King for that a Monarch or an absolute Prince cannot come into England without licence of the King, but any subject being in league, may come into this Realm without licence; 2. That the King in his licence doth stile him by the name of a King. It was resolved in 11 Hen. 8. that where an office was found after the decease of Thomas Earl of Darby, and that he died seised, &c. of the Isle of Man, that the said office was utterly void, for that the Isle of Man, Normandy, Gascoin, &c. were out of the power of the Chancery, and governed by several laws; and yet none will doubt, but those that are born within that Isle, are capable and inheritable of lands within the Realm of England.Wales, Cambria, Wallia. Wales was sometimes a kingdom, as it appeareth by 19 Hen. 6. fol. 6. and by the act of Parliament of 2 Hen. 5. cap. 6. but whilst it was a kingdom, the same was holden, and within the fee, of the King of England: and this appeareth by our books. Fleta lib. 1. cap. 16. 1 Edw. 3. 14. 8 Edw. 3. 59. 13 Edw. 3. tit. Jurisdict’. 10 Hen. 4. 6. Plow. Com. 368. And in this respect, in divers ancient Charters, Kings of old time styled themselves inseveralmanners, as King Edgar, Britannia Basilen’c; Etheldredus, totius Albionis dei providentia Imperator; Edredus magnae Britanniae monarcha,196 which among many other of like nature I have seen. But by the Statute of 12 Edw. 1. Wales was united and incorporated into England, and made parcel of England in possession; and therefore it is ruled in 7 Hen. 4. fol. 1. 4. that no protection doth lie quia moratur in Wallia,197 because Wales is within the realm of England. And where it is recited in the act of 27 H. 8. that Wales was ever parcel of the Realm of England, it is true in this sense, viz. that before 12 E. 1. it was parcel in tenure, and since it is parcel of the body of the Realm. And whosoever is born within the fee of the King of England, though it be in another kingdom, is a natural born subject, and capable and inheritable of lands in England, as it appeareth in Plow. Com. 126. And therefore those that were born in Wales before 12 Edw. 1. whilst it was onely holden of England, were capable and inheritable of lands in England.

Edition: current; Page: [217]

France, Gallia, Francia.Now come we to France and the members thereof, as Callice, Guynes, Tournay, &c. which descended to King Edward the third as son and heir to Isabel, daughter and heir to Philip le Beau, King of France. Certain it is, whiles |Edition: Sheppard2003; Page: [22 a] King Henry the sixth had both England and the heart and greatest part of France under his actual ligeance and obedience (for he was crowned King of France in Paris) that they that were then born in those parts of France, that were under actual ligeance and obedience, were no aliens, but capable of, and inheritable to lands in England. And that is proved by the writs in the Register, fol. 26. cited before. But in the inrolment of Letters Patents of denization in the Exchequer, int’ originalia,198 Anno 11 Hen. 6. with the Lord Treasurer’s Remembrancer, was strongly urged and objected: for (it was said) thereby it appeareth, that King Henry the sixth in Anno 11 of his reign, did make denizen one Reynel, born in France: Whereunto it was answered, that it is proved by the said Letters Patents, that he was born in France before King Henry the sixth had the actual possession of the Crown of France, so as he was Antenatus: and this appeareth by the said Letters Patents, whereby the King granteth, that Magister Johannes Reynel serviens noster, &c. infra regnum nostrum Franc’ oriundus pro termino vitae suae sit ligeus noster, et eodem modo teneatur sicut verus et fidelis noster infra regnum Angl’ oriundus, ac quod ipse terras infra regnum nostrum Angl’ seu alia dominia nostra perquirere possit et valeat.199 Now if that Reynel had been born since Henry the sixth had the quiet possession of France (the King being crowned King of France about one year before) of necessity he must be an infant of very tender age, and then the King would never have called him his servant, nor made the Patent (as thereby may be collected) for his service, nor called him by the name of Magister Johannes Reynel: But without question he was Antenatus, born before the King had the actual and real possession of that Crown.

Calice, Calecia, Caletum.Callice [Calais] is a part of the kingdom of France, and never was parcell of the kingdom of England, and the kings of England enjoyed Callice in and from the reign of King Edward the third, until the losse thereof in Queen Maries time, by the same title that they had to France. And it is evident by Edition: current; Page: [218] our books, that those that were born in Callice, were capable and inheritable to lands in England, 42 Edw. 3. cap. 10. Vide 21 Hen. 7. 33. 19 Hen. 6. 2 Edw. 4. 1. 39 Hen. 6. 39. 21 Edw. 4. 18. 28 Hen. 6. 3 b. By all which it is manifest, that Callice being parcel of France, was under the actual obedience and commandment of the King, and by consequent those that were born there, were natural born subjects, and no aliens. Callice from the reign of King Edward the third until the fifth year of Queen Mary, remained under the actual obedience of the king of England. |Edition: Sheppard2003; Page: [22 b] Guines also, another part of France, was under the like obedience to King Henry the sixth, as appeareth by 32 Hen. 6. fol. 4.Guynes, Tournay. And Tournay was under the obedience of Henry the eighth., as it appeareth by 5 Eliz. Dyer, fol. 224. for there it is resolved, that a bastard born at Tournay, whiles it was under the obedience of Henry the eighth, was a natural subject, as an issue born within this realm by aliens. If then those that were born at Tournay, Callice, &c. whiles they were under the obedience of the king, were natural subjects, and no aliens, it followeth, that when the kingdom of France (whereof those were parcels) was under the king’s obedience, that those that were then born there, were natural subjects, and no aliens.

Ireland, Hibernia.Next followeth Ireland, which originally came to the kings of England by conquest but who was the first conqueror thereof, hath been a question. I have seen a Charter made by King Edgar, in these words: Ego Edgarus Anglorum Βασιλεν̀ς, omniumque insularum oceani, quae Britanniam circumjacent, Imperator et Dominus, gratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium sic ampliavit et exaltavit super regnum patrum meorum, &c. mihi concessit propitia divinitas, cum Anglorum imperio omnia regna insularum oceani, et cum suis ferocissimis Regibus usque Norvegiam, maximamque partem Hibern’, cum sua noblissima civitate de Dublina, Anglorum regno subjugare, quapropter et ego Christi gloriam et laudem in regno meo exaltare, et ejus servitium amplificare devotus disposui, &c.200 Yet for that it was wholly conquered in the reign of Henry the second, the honour of the conquest of Ireland is attributed to him, Edition: current; Page: [219] and his style was, Rex Angl’ Dominus Hibern’ Dux Normann’ Dux Acquittan’ et Comes Andegav’,201 King of England, Lord of Ireland, Duke of Normandy, Duke of Aquitain, and Earl of Anjou. That Ireland is a dominion separate and divided from England, it is evident from our books, 20 Hen. 6. 8. Sir John Pilkington’s case. 32 Hen. 6. 25. 20 Eliz. Dyer 360. Plow. Com. 360. And 2 Rich. 3. 12. Hibernia habet Parliamentum, et faciunt leges, et nostra statuta non ligant eos, quia non mittunt milites ad Parliamentum (which is to be understood, unlesse they be especially named) sed personae eorum sunt subjecti regis, sicut inhabitantes in Calesia, Gasconia, et Guyan.202 Wherein it is to be observed, that the Irishman (as to subjection) is compared to men born in Calice, Gascoin, and Guyan. Concerning their Laws, Ex rotulis patentium de Anno 11 Regis Hen. 3.203 there is a Charter which that king made, beginning in these words, Rex, &c., Baronibus, militibus, et omnibus libere tenentibus L. salutem, satis ut credimus |Edition: Sheppard2003; Page: [23 a]vestra audivit discretio, quod quando bonae memoriae Johannes quondam Rex Angl’ pater noster venit in Hiberniam ipse duxit secum viros discretos et legis peritos, quorum communi consilio et ad instantiam Hibernensium statuit et precepit leges Anglicanas in Hibern’ ita quod leges easdem in scripturas redactas reliquit sub sigillo suo ad Scaccarium Dublin’.204 So as now the Laws of England became the proper Laws of Ireland; and therefore, because they have Parliaments holden there, whereat they have made divers particular Laws concerning that dominion, as it appeareth in 20 Hen. 6. 8. & 20 Eliz. Dyer 360. and for that they retain unto this day divers of their ancient customs, the book in 20 Hen. 6. 8. holdeth, that Irelandis governed by laws and customs, separate and diverse from the Laws of England. A voyage royal may be made into Ireland. Vide 11 Hen. 4. 7. & 7 Edw. 4. 27. which proveth it a distinct Dominion. And in Anno 33 Reg. El. it was resolved by all the Judges of England Edition: current; Page: [220] in the case of Orurke an Irishman, who had committed high Treason in Ireland, that he by the statute of 33 Hen. 8. c. 23. might be indicted, arraigned, and tried for the same in England, according to the purview of that statute: the words of which statute be, That all Treasons, &c. Committed by any person out of the realm of England, shall be from henceforth inquired of, &c. And they all resolved (as afterward they did also in Sir John Perrot’s case) That Ireland was out of the Realm of England, and that Treasons committed there, were to be tried within England by that Statute. In the Statute of 4 Hen. 7. cap. 24. of Fines, provision is made for them that be out of this land, and it is holden in Pl. Com. in Stowel’s case 375, that he that is in Ireland, is out of this land, and consequently within that proviso. Might not then the like plea be devised as well against any person born in Ireland, as (this is against Calvin that is a Post-natus205) in Scotland? For the Irishman is born extra ligeantiam regis regni sui Angl’, &c.206 which be verba operativa207 in the plea: But all men know, that they are natural born Subjects, and capable of and inheritable to lands in England. Lastly, to conclude this part with Scotland itself; in ancient time part of Scotland (besides Berwick) was within the power and ligeance of the King of England, as it appeareth by our Books 42 Edw. 3. 2. The Lord Beaumont’s case, 11 Edw. 3. c. 2, &c. and by precedents hereafter mentioned; and that part (though it were under the king of England’s ligeance and obedience) yet was it governed by the Laws of Scotland. |Edition: Sheppard2003; Page: [23 b]Ex rotulis Scotiae, Anno 11 Edw. 3. amongst the records in the Tower of London. Rex, &c. Constituimus Rich. Talebot Justiciarium nostrum villae Berwici super Twedam, ac omnium aliarum terrarum nostrarum in partibus Scot’, ad faciend’ omnia et singula quae ad officium justiciarii pertinent, secundum legem et consuetudinem regni Scot’.208 And after Anno 26 Edw. 3. ex eodem rot. Rex Henrico de Percey, Ricarda de Nevil, &c. Volumus et vobis et alteri vestrum tenore praesentium committimus et mandamus, quod homines nostri de Scot’ ad pacem et obedientiam nostram existentes, legibus, libertatibus, et liberis consuetudinibus, quibusipsietantecessores sui tempore celebris memoriae Alexandri quondam Regis Scot’ rationabiliter usi Edition: current; Page: [221] fuerunt, uti ut gaudere deberent, prout in quibusdam indenturis, &c. plenius dicitur contineri.209 And there is a Writ in the Register 295 a. Dedimuspotestatem recipendi ad fidem et pacem nostram homines de Galloway.210 Now the case in 42 Edw. 3. 2. (which was within sixteen years of the said grant, concerning the Lawes in 26 Edw. 3.) ruleth it, That so many as were born in that part of Scotland, that was under the ligeance of the King, were no aliens, but inheritable to lands in England; yet was that part of Scotland in another Kingdome governed by several Lawes, &c. And if they were natural Subjects in that case, when the King of England had but part of Scotland, what reason should there be why those that are born there, when the King hath all Scotland, should not be natural Subjects, and no aliens? So likewise Barwick is no part of England, nor governed by the Lawes of England; and yet they that have been born there, since they were under the obedience of one King, are natural born Subjects, and no aliens, as it appeareth in 15 Rich. 2. cap. 7, &c. Vide 19 Hen. 6. 35. & 39 Hen. 6. 39. And yet in all these cases and examples, if this new devised plea had been sufficient, they should have been all aliens against so many judgments, resolutions, authorities, and judicial Precedents in all successions of ages. There were sometimes in England, whiles the Heptarchy lasted, seven several crowned Kings of several and distinct Kingdomes, but in the end the West Saxons got the Monarchy, and all the other Kings melted (as it were) their Crowns to make one imperial Diadem for the King of the West Saxons over all. Now when the whole was under the actual and real ligeance and obedience of one King, were any that were born in any of those several and distinct Kingdomes, aliens one to another? Certainly they being born under the obedience of one King and Sovereign were all natural born subjects, and capable of and inheritable unto any lands in any of the said Kingdomes.

|Edition: Sheppard2003; Page: [24 a] In the holy History reported by St. Luke, Ex dictamine spiritus sancti, cap. 21 et 22 Act. Apostolorum,211 it is certain, that St. Paul was a Jew, born in Tarsus, Edition: current; Page: [222] a famous City of Cilicia: for it appeareth in the said 21st chapter, 39 verse, by his own words: Ego homo sum quidem Judaeus a Tarso Ciliciae non ignotae civitatis municeps.212 And in the 22d chapter, 3. verse, Ego sum vir Judaeus natus Tarso Ciliciae, &c.213 and then made that excellent Sermon there recorded, which when the Jews heard, the Text saith, verse 22. Levaverunt vocem suam dicentes, tolle de terra hujusmodi, non enim fas est eum vivere: vociferantibus autem eis et projicientibus vestimenta sua, et pulverem jactantibus in aerem,214 Claudius Lysias the popular Tribune, to please this turbulent and profane multitude (though it were utterly against justice and common reason) the Text saith, Jussit Tribunus induci eum in castra, 2. flagellis caedi, et 3. torqueri eum (quid ita?) ut sciret propter quam causam sic acclamarent:215 and when they had bound Paul with cords, ready to execute the Tribune’s unjust commandment, the blessed Apostle (to avoid unlawfull and sharp punishment) took hold of the law of a heathen Emperour, and said to the Centurion standing by him, Si hominem Romanum et indemnatum licet vobis flagellare?216 Which when the Centurion heard, he went to the Tribune and said, Quid acturus es? Hic enim homo civis Romanus est.217 Then came the Tribune to Paul, and said unto him: Dic mihi si tu Romanus es? At ille dixit, etiam.218 And the Tribune answered, Ego multa summa civitatem hanc consequutus sum.219 But Paul not meaning to conceal the dignity of his birth-right, said, Ego autem et natus sum:220 as if he should have said to the Tribune, you have your freedom by purchase of money, and I (by a more noble means) by birth-right and inheritance. Protinus ergo (saith the text) decesserunt ab illo qui illum torturi erant. Tribunus quoque timuit postquam rescivit, quia civis Romanus esset, et quia alligasset eum.221 So Edition: current; Page: [223] as hereby it is manifest, that Paul was a Jew, born at Tarsus in Cilicia, in Asia Minor, and yet being born under the obedience of the Roman Emperour, he was by birth a citizen of Rome in Italy in Europe that is, capable of and inheritable to all privileges and immunities of that city. But such a plea as is now imagined against Calvin might have made St. Paul an Alien to Rome. For if the Emperour of Rome had several ligeances for every several Kingdome and Countrey under his obedience, then might it have been said against St. Paul, that he was extra |Edition: Sheppard2003; Page: [24 b]ligeantiam Imperatoris regni sui Italiae, et infra ligeantiam Imperatoris regni sui Ciliciae, &c.222 But as Saint Paul was Judaeus patria et Romanus privilegio, Judaeus natione et Romanus jure nationum;223 so may Calvin say, that he is Scotus patriae et Anglus privilegio; Scotus natione, et Anglus jure nationum.224

Samaria in Syria was the chief City of the ten Tribes: but it being usurped by the king of Syria, and the Jews taken prisoners, and carried away incaptivity, was after inhabited by the Panyms. Now albeit Samaria of right belonged to Jurie, yet because the people of Samaria were not under actual obedience, by the judgment of the chief Justice of the whole world they were adjudged Alienigenae, Aliens: For in the Evangelist St. Luke, c. 17. when Christ had cleansed the ten Lepers, Unus autem ex illis (saith the Text) ut vidit quia mundatus esset, regressus est, cum magna voce magnificans Deum, et cecidit in faciem ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit, Nonne decem mundati sunt, et novem ubi sunt? Non est inventus qui rediret et daret gloriam Deo nisi hic alienigena.225 So as by his judgment this Samaritan was Alienigena, a Stranger born, because he had the place, but wanted obedience. Et si desit obedientia non adjuvet locus.226 And this agreeth with the Divine, who saith, Si locus salvare potuisset, Satan de coelo pro sua inobedientia Edition: current; Page: [224] non cecidisset. Adam in paradiso non cecidisset, Lot in monte non cecidisset, sed potius in Sodom.227

6. Now resteth the sixth part of this division, that is to say, six demonstrative illations, or conclusions, drawn plainly and expressly from the premises.

1. Every one that is an Alien by birth, may be, or might have been, an enemy by accident; but Calvin could never at any time be an enemy by any accident; ergo he cannot be an alien by birth. Vide 33 Hen. 6. fol. 1. the differencebetween an alien enemy and a subject traytor. Hostes sunt qui nobis, vel quibus nos bellum decernimus, caeteri proditores, praedones, &c.228 The major is apparent, and is proved by that which hath been said. Et vide Magna Charta, cap. 30. 19 Edw. 4. 6. 9 Edw. 3. c. 1. 27 Edw. 3. c. 2. 4 Hen. 5. c. 7. 14 Edw. 3. stat. 2. c. 2. &c.

2. Whosoever are born under one natural ligeance and obedience, due by the Law of Nature to one Sovereign are natural born Subjects: But Calvin was born under one natural ligeance and obedience, due by the Law of Nature to one Sovereign; ergo he is a natural born subject.

|Edition: Sheppard2003; Page: [25 a] 3. Whosoever is born within the King’s power or protection, is no Alien: But Calvin was born under the King’s power and protection; ergo he is no Alien.

4. Every stranger born must at his birth be either amicus,229 or inimicus:230 But Calvin at his birth could neither be amicus nor inimicus; ergo he is no stranger born. Inimicus he cannot be, because he is subditus, and for that cause also he cannot be amicus; neither now can Scotia be said to be solum amici,231 as hath been said.

5. Whatsoever is due by the law or constitution of man, may be altered: But natural ligeance or obedience of the subject to the Sovereign cannot be altered; ergo natural ligeance or obedience to the Sovereign is not due by the law or constitution of man. Again, whatsoever is due by the Law of Nature, cannot be altered: But ligeance and obedience of the subject to the Sovereign is due by the law of Nature; ergo it cannot be altered. It hath been proved before, that ligeance or obedience of the inferior to the superior, of the subject Edition: current; Page: [225] to the Sovereign, was due by the Law of Nature many thousand years before any Law of man was made: Which ligeance or obedience (being the onely mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the Law of Nature. For Leges naturae perfectissimae sunt et immutabiles, humani vero juris conditio semper in infinitum decurrit, et nihil est in eo quod perpetuo stare possit. Leges humanae nascuntur, vivunt, moriuntur.232

Lastly, whosoever at his birth cannot be an alien to the King of England, cannot be an alien to any of his subjects of England: But the Plaintiff at his birth could be no alien to the king of England; ergo the Plaintiff cannot be an alien to any of the subjects of England. The major and minor both be propositiones perspicue verae.233 For as to the major it is to be observed, that whosoever is an alien born, is so accounted in Law in respect of the King: And that appeareth first by the pleading so often before remembered, that he must be extra ligeantiam Regis, without any mention making of the subject. 2. When an alien born purchaseth any lands, the King onely shall have them, though they be holden of a subject, in which case the subject loseth his Seigniorie. And as it is said in our Books, an Alien may purchase ad proficuum Regis;234 but the act of Law giveth the alien nothing: And therefore if a woman alien marrieth a subject, she shall not be endowed, neither shall an alien be tenant by the courtesy. Vide 3 Hen. 6. 55. 4 Hen. 3. 179. 3. The subject shall plead, that the defendant is an |Edition: Sheppard2003; Page: [25 b] alien born, for the benefit of the king, that he upon office found may seize, and 2. that the Tenant may yield to the King the land, and not to the alien, because the king hath best right thereunto. 4. Leagues between our Sovereign and others are the onely means to make aliens friends, et foedera percutere,235 to make Leagues, onely and wholly pertaineth to the king. 5. Wars do make aliens enemies, and bellum indicere236 belongeth onely and wholly to the king, and not to the subject, as appeareth in 19 Edw. 4. fol. 6. 6. The King onely without the subject may make not onely Letters Edition: current; Page: [226] of Safe conduct, but Letters Patents of Denization, to whom, and how many he will, and enable them at his pleasure to sue any of his Subjects in any action whatsoever, real or personal, which the king could not doe without the subject, if the subject had any interest given unto him by the Law in any thing concerning an alien born. Nay, the Law is more precise herein than in number of other cases, of higher nature: for the king cannot grant to any other to make of strangers born, denizens, it is by the Law itself so inseparably and individually annexed to his royal person (as the book is in 20 Hen. 7. fol. 8.) For the Law esteemeth it a point of high Prerogative, Jus majestatis, et inter insignia summae potestatis237 to make aliens born subjects of the Realm, and capable of the lands and inheritances of England, in such sort as any natural born subject is. And therefore by the Statute of 27 Hen. 8. cap. 24. many of the most ancient Prerogatives and royal Flowers of the Crown, as authority to pardon Treason, Murther, Manslaughter, and Felony, power to make Justices in Eyre, Justices of Assise, Justices of Peace and Gaol Delivery, and such like, having been severed and divided from the Crown, were again reunited to the same: But authority to make Letters of Denization, was never mentioned therein to be resumed, for that never any claimed the same by any pretext whatsoever, being a matter of so high a point of Prerogative. So as the pleading against an alien, the purchase by an alien, leagues and wars between aliens, denizations, and safeconducts of aliens, have aspect onely and wholly unto the king. It followeth therefore, that no man can be alien to the subject that is not an alien to the king, Non potest esse alienigena corpori, qui non est capiti, non gregi qui non est Regi.238

The 5th general part concerning inconveniences.Now we are come to consider of legal inconveniences: And first of such as have been objected against the Plaintiff, and, secondly of such as shouldfollow, if it had been adjudged against the Plaintiff.

Of such inconveniences as were objected against the Plaintiff, there remain onely four to be answered; for all the rest are clearly and fully satisfied before: 1. That if Postnati should be inheritable to our laws and inheritances, it were reason that they should be bound by our Laws; but Postnati are not bound by our Statute or Common Laws; for they having (as it was objected) never so much freehold or inheritance, cannot be returned of Juries, nor subject to scot or lot, nor chargeable to Subsidies or Quinzimes, nor bound by any Act of Parliament made in England. 2. Whether one be born within the kingdom of Scotland, or no, is not tryable in England, for that it is a thing done out of this Realm, and no Jury can be returned for the tryal of any such Issue: And what inconvenience should thereof follow, if such pleas that wanted tryal should be allowed (for then all aliens might imagine the like plea) they that objected it, left it to the consideration of others. 3. It was objected, that this Innovation was so dangerous, that the certain event thereof no man could foresee, and therefore some thought it fit, that things should stand and continue as they had been in former time, for fear of the worst. 4. If Postnati were by Law legitimated in England, it was objected what inconvenience and confusion should |Edition: Sheppard2003; Page: [26 b] follow, if (for the punishment of us all) the King’s royal Issue should faile, &c. whereby those kingdomes might again be divided. All the other arguments and objections that have been made, have been answered before, and need not to be repeated again.

1. To the first it was resolved, That the cause of this doubt was the mistaking of the Law: For if a Postnatus do purchase any lands in England, he shall be subject in respect thereof, not onely to the Laws of this Realm, but also to all services and contributions, and to the payment of Subsidies, Taxes, and publique Edition: current; Page: [228] charges, as any Denizen or Englishman shall be; nay, if he dwell in England, the King may command him by a Writ of Ne exeat Regnum,239 that he depart not out of England. But if a Postnatus dwell in Scotland, and have lands in England, he shall be chargeable for the same to all intents and purposes, as if an Englishman were owner thereof, and dwelt in Scotland, Ireland, in the Isles of Man, Jernsey, or Gersey, or elsewhere. The same Law is of an Irishman that dwells in Ireland, and hath land in England. But if Postnati, or Irishmen, men of the Isles of Man, Jernsey, Gersey, &c. have lands within England, and dwell here, they shall be subject to all services and publique charges within this Realm, as any Englishman shall be. So as to services and charges, the Postnati and Englishmen born are all in one predicament.

2. Concerning the tryal, a threefold answer was thereunto made and resolved. 1. That the like objection might be made against Irishmen, Gascoins, Normans, men of the Isles of Man, Jernsey, and Gersey, of Berwick, &c. all which appear by the rule of our books to be natural born subjects; and yet no Jury can come out of any of those countries or places, for trial of their births there. 2. If the demandant or plaintiff in any action concerning lands be born in Ireland, Jernsey, Gersey, &c. out of the Realm of England, if the tenant or defendant plead, that he was born out of the ligeance of the king, &c. the demandant or plaintiff may reply, that he was born under the ligeance of the King at such place within England; and upon the evidence the place shall not be material, but only the Issue shall be, whether the demandant or plaintiff were born under the ligeance of the King in any of his kingdoms or dominions soever: And in that case the Jury (if they will) may find the special matter, viz. the place where he was born, and leave it to the judgment of the Court: and that Jurors may take knowledge of things done |Edition: Sheppard2003; Page: [27 a] out of the Realm in this and like cases, vide 7 Hen. 7. 8. b. 20 Edw. 3. Averment 34. 5 Ric. 2. tit. Trial 54. 15 Edw. 4. 15. 32 Hen. 6. 25. Fitz. Nat. Br. 196. Vid Dowdales case in the sixth part of my Reports, fol. 47. and there divers other judgments be vouched. 3. Brown in Anno 32 Hen. 6. reporteth a Judgment then lately given, that where the defendant pleaded, That the plaintiff was a Scot, born at St. John’s Town in Scotland, out of the ligeance of the King; whereupon they were at Issue, and that Issue was tried where the Writ was brought, and that Edition: current; Page: [229] appeareth also by 27 Ass. pl. 24. that the Jury did find the Prior to be born in Gascoin: for so much is necessarily proved by the words trove fuit240 And 20 Ed. 3. tit. Averment 34. in a juris utrum,241 the death of one of the vouchees was alleged at such a Castle in Britain, and this was inquired of by the Jury: And it is holden in 5 Rich. 2. tit. Trial 54. That if a man be adhering to the enemies of the King in France, his Land is forfeitable, and his adherency shall be tried where the land is, as oftentimes hath been done, as there it is said by Belknap: And Fitz. Nat. Bre. 196 in a Mortdanc,242 if the ancestor died in intinere peregrinationis sum vers. Terram sanctam243 the Jury shall inquire of it. But in the case at barr, seeing the Defendant hath pleaded the truth of the case, and the Plaintiff hath not denied it, but demurred upon the same, and thereby confessed all matters of fact, the Court now ought to judge upon the especial matter, even as if a Jury upon an issue joyned in England, as it is aforesaid, had found the especial matter, and left it to the Court.

3. To the third it was answered and resolved, That this judgment was rather a renovation of the judgments and censures of the reverend Judges and Sages of the law in so many ages past, than any innovation, as it appeareth by the books and book cases before recited: neither have Judges power to judge according to that which they think to be fit, but that which out of the laws they know to be right and consonant to law. Judex bonus nihil ex arbitrio suo faciat, nec proposito domesticae voluntatis, sed juxta leges et jura pronuntiat.244 And as for timores,245 fears grounded upon no just cause, Qui non cadunt in constantem virum, vani timores aestimandi sunt.246

4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it hath been often said, Natural legitimation respecteth actual obedience to the Sovereign at the time of the birth: for as the Antenati remain aliens as to the Crown of England, because they were born when there were Edition: current; Page: [230] several Kings of the several kingdoms, and the |Edition: Sheppard2003; Page: [27 b] uniting of the kingdoms by descent subsequent, cannot make him a Subject to that Crown to which he was an alien at the time of his birth: So albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several Kings; yet it was resolved, That all those that were born under one natural obedience, whiles the Realms were united under one Sovereign, should remain natural born Subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of Law a natural Subject at the time of his birth, become an alien by such a matter ex post facto. And in that case, upon such an accident, our Postnatus may be ad fidem utriusque Regis,247 as Bracton saith in the afore remembered place, fol. 427. Sicut Anglicus non auditur in placitando aliquem de terris et tenement, in Francia ita nec debet Francigena et alienigena, qui fuerit ad fidem Regis Franciae, audiri placitando in Angiui: sed tamen sunt aliqui Francigenae in Francia qui sunt ad fidem utriusque: et semper fuerunt ante Normaniam deper ditam et post, et qui placitant hic et ibi, ea ratione qua sunt ad fidem utriusque, sicut fuit Willielmus comes mareschallus et manens Angiui, et M. de Gynes manens in Francia, et alli plures.248 Concerning the reason drawn from the Etymologies, it made against them, for that by their own derivation, alienae gentis249 and alienaeligeantiae250 is all one: But arguments drawn from Etymologies, are too weak and too light for Judges to build their judgments upon: for Saepenumero ubi proprietas verborum attenditur, sensus veritatis amittitur:251 and yet when they agree with the Judgment of Law, Judges may use them for ornaments. But on the other side, some inconveniences should follow, if the plea against the Plaintiffshould be allowed: for first it maketh Ligeance local: videlicet, Ligeantia Regis regni Edition: current; Page: [231] sui Scotiae, and Ligeantia Regis regni sui Angliae:252 whereupon should follow, First, That faith or ligeance, which is universal, should be confined within locall limits and bounds; Secondly, That the Subject should not be bound to serve the King in peace or in warre out of those limits; Thirdly, it should illegitimate many, and some of noble blood, which were born in Gascoign, Guyen, Normandie, Callice, Tournay, France, and divers other of his Majesties Dominions, whiles the same were in actual |Edition: Sheppard2003; Page: [28 a] obedience, and in Berwick, Ireland, Jernsey, and Gersey, if this plea should have been admitted for good. And thirdly, this strange and new devised plea inclineth too much to countenance that dangerous and desperate error of the Spencers, touched before, to receive any allowance within Westminster Hall.

In the proceeding of this case, these things were observed, and so did the chief Justice of the Common pleas publiquely deliver in the end of his argument in the Exchequer Chamber. First, That no commandment or messuage by word or writing was sent or delivered from any whatsoever to any of the Judges, to cause them to incline to any opinion in this case: which I remember, for that it is honourable for the State, and consonant to the Laws and Statutes of this Realm. Secondly, there was observed, what a concurrence of Judgments, Resolutions, and Rules, there be in our books in all ages concerning this case, as if they had been prepared for the deciding of the question of this point: and that (which never fell out in any doubtfull case) no one opinion in all our books is against this judgment. Thirdly, That the five Judges of the King’s Bench, who adjourned this case into the Exchequer Chamber, rather adjourned it for weight than for difficulty, for all they in their arguments una voce253 concurred with the judgment. Fourthly, That never any case was adjudged in the Exchequer Chamber with greater concordance and lesse variety of opinions, the Lord Chancellor and twelve of the Judges concurring in one opinion. Fifthly, That there was not in any remembrance sohonourable, great, and intelligent an auditory at the hearing of the arguments of any Exchequer Chamber case, as was at this case now adjudged. Sixthly it appeareth, that Jurisprudentia legis communis Angliae est scientia socialis et copiosa:254 sociable, Edition: current; Page: [232] in that it agreeth with the principles and rules of other excellent Sciences, divine and human: copious, for that quamvis ad ea quae frequentius accidunt jura adaptantur,255 yet in a case so rare, and of such a quality, that losse is the assured end of the practice of it (for no alien can purchase lands, but he loseth them; and ipso facto the King is entitled thereunto, in respect whereof a man would think few men would attempt it) there should be such a multitude and farrago of authorities in all successions of ages, in our books and book cases, for the deciding of a point of so rare an accident. Et sic determinata et terminata est ista quaestio.256

|Edition: Sheppard2003; Page: [28 b]The Judgment in the said Case, as entered on Record, &c.

“Whereupon all and singular the premises being seen, and by the Court of the Lord the now King here diligently inspected and examined, and mature deliberation being had thereof; for that it appears to the Court of the Lord the now King here, that the aforesaid plea of the said Richard Smith and Nicholas Smith above pleaded, is not sufficient in law to bar the said Robert Calvin from having an answer to his aforesaid writ: therefore it is considered by the Court of the lord the now King here, that the aforesaid Richard Smith and Nicholas Smith to the writ of the said Robert do further answer.”

The Case of Swans.

(1592) Trinity Term, 34 Elizabeth I

Before the Queen’s Commissioners.

First Published in the Reports, volume 7, page 15b.

Ed.: Joan Young and Thomas Saunger received a writ from the Exchequer, directing the sheriff of Dorset to round up 400 loose swans from the rivers of the county. Swans are Royal fowl, however, and a wild swan is the property of the monarch. The right to these swans in Dorset was once held by the local abbot, who lost the right along with the abbey to Henry VIII at the dissollution. Henry then granted the estate to Giles Strangeways, whose heir gave them a right to the swans for one year. The question is whether Edition: current; Page: [233] the swans were Strangeways’s or remained the Queen’s. Coke, as Solicitor General, represented the Queen. The Court held that the swans that are ferae naturae, or wild animals, cannot be given by transfer or taken by prescription.

1. It was Resolved, That all white Swans not marked, which having gained their natural liberty, and are swimming in an open and common River, might be seised to the King’s use by his prerogative, because that Volatilia, (quae sunt ferae naturae) alia sunt regalia, alia communia: and so Aquatilium, alia sunt regalia, alia communia:7 as a Swan is a Royal fowl; and all those, the property whereof is not known, do belong to the King by his prerogative: and so Whales and Sturgeons are Royal Fishes, and belong to the King by his Prerogative. And there hath been an ancient Officer of the King’s, called Magister deductus cignorum,8 |Edition: Sheppard2003; Page: [16 b] which continueth to this day. But it was Resolved also, That the subject might have property in white Swans not marked, as some may have swans not marked in his private waters, the property of which belongs to him, and not to the King; and if they go out of his private waters into an open and common River, he may bring them back and take them again. And therewith agreeth Bracton, lib. 2. cap. 1. fo. 9. Si autem animalia fera facta fuerint mansueta, & ex consuetudine eunt, & redeunt, volant, & revolant, (ut sunt Cervi, Cigni, Pavones, et Columbae, et hujusmodi) eousque nostra intelligantur, quamdiu habuerint animum revertendi.9 But if they have gained their natural liberty, and are swimming in open and common Rivers, the King’s Officer may seise them in the open and common River for the King: for one white Swan, without such pursuit as aforesaid, cannot be known from another, and when the property of a swan cannot be known, the same being of its nature a Fowl Royal, doth belong to the King; and in this case the book of 7 Hen. 6. 27.wasvouched, where Sir John Tiptoft brought an action of Trespass for wrongful taking of his Swans; the Defendant pleaded that he was seised of the Lordship of S. within which Lordship, all those whose estate he hath in the said Lordship, had had time out of mind, &c. all estreies being within the said Manor; and we say that the said Swans were estraying at the time in the place where, &c. and we as Landlords did seise and make proclamations in Fairs and Markets, and so soon as we had notice that they were your Swans, we delivered them to you at such a place. The Plaintiff replied, That he was seised of the Manor of B. joining to the Lordship of S. and we say, that we and our Ancestors, Edition: current; Page: [236] and all those, &c. have used time out of mind, &c. to have Swans swimming through all the Lordship of S. and we say, that long time before the taking we put them in there, and gave notice of them to the Defendant that they were our Swans; and prayed his Damages. And the opinion of Strange there was well approved by the Court, that the Replication was good: For when the Plaintiff may lawfully put his swans there, they cannot be estrays, no more than the Cattle of any can be estrays in such place where they ought to have Common; because they are there where the Owner hath an interest to put them, and in which place they may be without negligence or laches10 of the Owner. Out of which Case, these points were observed concerning Swans, 1. That every one who hath Swans within his Manor, that is to say, within his private waters, hath a property in them, for the Writ of Trespasswas of wrongful taking his Swans; scil. Quare cignos suos &c.11 2. That one may prescribe to have a game of Swans within his Manor, as well as a Warren, or Park. 3. That he who hath such a game of Swans may prescribe, that his Swans may swim within the |Edition: Sheppard2003; Page: [17 a] Manor of another. 4. That a swan may be an Estray, and so cannot any other Fowl, as I have read in any Book. In 2 Rich. 3. 15 & 16. The Lord Strange and Sir John Charlton brought an Action of Trespass against 3, because the Defendants had taken and carried away 40 Cygnets of the Plaintiff’s in the County of Bucks, to his damages of 10 l. One of the Defendants pleaded, That the water of the Thames ran through the whole realm, and that the County of Buckingham is adjoining to the Thames, and that the custom of the said County of Buckingham is, and hath been time out of mind, &c. That every Swan (for Cignet in the book is taken for a Swan) which hath course in any water, which water runs to the Thames within the same County. That if any Swan cometh on the land of any man, and there builds, and hath Cignets on the same land, that then he who hath the property of the Swan shall have 2 of the Cignets, and he who hath the land shall have the third Cignet, which shall be of less value than the other 2; and that was adjudged a good custom, because the possessor of the Land suffers them to build there, where he may drive them off. And by this Judgment it also appears, That a man may allege a Custom or Prescribe in Swans or Cignets. And in the same Case it is said, That the truth of the matter was, that the Lord Strange had certain Swans Edition: current; Page: [237] which were Cocks, and Sir John Charleton certain Swans which were Hens, and they had Cignets between them; and for these Cignets the owners did join in one Action, for in such case by the general custom of the Realm, which is the Common Law in such case, the Cignets do belong to both the owners in common equally, scil. to the owner of the Cock, and the owner of the Hen; and the Cignets shall be divided betwixt them. And the Law thereof is founded on a reason in nature; for the Cock Swan is an emblem or representation of an affectionate and true Husband to his Wife above all other Fowle; for the Cock Swan holdeth himself to one female only; and for this cause nature hath conferred on him a gift beyond all others; that is, to die so joyfully, that he sings sweetly when he dies; upon which the Poet saith,

And therefore this case of the Swan doth differ from the case of Kine, or other brute beasts. Vide 7. Hen. 4. 9. And it was agreed that none can have a Swan mark, which in Latin is called cigninota13 if it not be by the grant of the King, or of his Officers authorised thereto, or by prescription. And if he hath a lawful Swan-mark, and hath Swans swimming in open and common Rivers, lawfully marked therewith, they belong to him ratione privilegii.14 But none shall have a Swan-mark, or Game of Swans, if he hath not Lands or Tenements of an Estate of Freehold of the yearly value of five Marks, above all charges, on pain of forfeiture of his Swans, whereof the King shall have one moiety, and he who seises shall have the other moiety: and that is by the stat. of 22 Edw. 4. cap. 6. And he who hath such Swan-mark may grant it over. And thereof I have seen a notable precedent in the time of Henry the sixth which is such, Notum sit omnib’ hominib’ praesentib’ et futuris, quod ego J. Steward Miles, dedi et |Edition: Sheppard2003; Page: [17 b]concessi Tho’ fil’ meo primogenito, et haeredib’ suis, cigninot’ meam armor’ meor’, prout in margine laterali pingitur, quae mihi jure haereditar’ descendeb’ post mort’ J. Steward mil’ patris mei: Habend’ sibi et haeredib’ suis, una cum omnib’ cignis et cignicul’ cum dicta nota baculi nodati signat’, Edition: current; Page: [238] sub condit’ quod quilib’ feria solis durante vita a gula Augusti, usque ad Cornisprivium apud dom’ meam de Darford, unum cignicul’ bene signat’ mihi aut meis deliberet, quod si defecerit, tunc volo, quod hoc praesens chirographum cassetur penitus, et pro nihilo habeatur. In cuj’ rei testimon’ ad instant’ Matildae uxor’ meae, meum sigil’ secret’ Christi crucifixi praesentib’ feci apponi. Hiis testib’ R. Clerico, J. D. Conyers, Alano Fabro, et al’ Dat. apud dom’ meam mansional’ de Darf. in vigilia S. Dunst’ ep’ an’ regni Regis Hen’ post conquest’ Angliae sexti.15 14. And in the Margent was printed a little ragged staff. And in this case it was resolved, that in some of them which are ferae naturae,16 a man hath jus proprietatis,17 a right of property, and in some of them a man hath jus privilegii,18 a right of privilege. And there are three manner of rights of property, scil. property absolute, property qualified, and property possessory. A man hath not absolute property in any thing which is ferae naturae, but in those which are domitae naturae.19 Property qualified and possessory a man may have in those which are ferae naturae; and to such property a man may attain by two ways, by industry, or ratione impotentiae et loci;20 by industry as by taking them, or by making them mansueta, i.e. manui assueta, or domesticae, i.e. domui assueta:21 But in those which are ferae naturae, and by industry are made tame, a man hath but a qualified property in them, scil. so long as they remain tame, for if they do attain to their natural liberty, and have not animum revertendi,22 the property is lost, ratione impotentiae et loci: As if a man has Edition: current; Page: [239] young Shovelers or Goshawks, or the like, which are ferae naturae, and they build in my land, I have possessory property in them, for if one takes them when they cannot fly, the owner of the soil shall have an action of Trespass, Quare boscum suum fregit, et tres pullos espervor’ suor’, or aidear’ suar’ pretii tantum, nupe in eod’ bosco nidificant’, cepit, et asportav’;23 and therewithagreeth the regist. and F. N. B. 86. (D) L. & 89. K. 10 Edw. 4. 14. 18 Edw. 4. 8. 14 Hen. 8. 1 b. Stamf. 25 b. &c. vide 12 Hen. 8. 4. & 18. Hen. 8. 12. But when a man hath savage beasts ratione privilegii, as by reason of a Park, Warren, &c. he hath not any property in the Deer, or Conies, or Pheasants, or Partridges, and therefore in an action, Quare Parcum Warrennum, &c. fregit et intrav’, et 3. damas, lepores, cuniculos, phasianos, perdices, cepit et asportavit,24 he shall not say (suos)25 for he hath no property in them, but they do belong to him ratione privil’ for his game and pleasure, so long as they remain in the privileged place; for if the owner of the Park dies, his heir shall have them, and not his Executors or Administrators, because without them the Park, which is an |Edition: Sheppard2003; Page: [18 a] Inheritance, is not complete; nor can Felony be committed of them, but of those which are made tame, in which a man by his industry hath any property, Felony may be committed. And therewith agrees the rule of the book in 3 Hen. 6. 55 b. 8 Edw. 4. 5 b. 22 Hen. 6. 59. which is ill reported, and 43 Edw 4. 24. vide 22 Ass. 12 Hen. 3. 13 Eliz. Dyer 306. 38 Edw. 3. 19. Vide 2 Edw. 2. tit. Distress. 2 Edw. 3. Avowry 182. But a man may have property in some things which are of so base nature, that no Felony can be committed of them; and no man shall lose life or member for them, as of a Blood-hound or Mastiff, molessus,26 12 Hen. 8. 3. Vide 18 Hen. 8. 2. But he who steals the Eggs of Swans out of the Nest shall be imprisoned for a year and a day, and fined at the will of the King; one moiety to the King, the other to the owner of the Land where the eggs were so taken, and that is by the Statute of 11 Hen. 7. cap. 17. And it hath been said of old time, That he who steals a Swan in an open and common River, lawfully marked, the same Swan (if it may be) or another swan, should be hung in a house by the beak, and he who stole Edition: current; Page: [240] it shall in recompence thereof be obliged to give the owner so much Wheat that may cover all the swan, by putting and turning the Wheat on the head of the Swan, until the head of the Swan be covered with the Wheat. And it was resolved, That in the principal case the prescription was insufficient; for the effect of the prescription is to have all wild Swans, which are ferae naturae,27 and not marked nidificant, gignent, et frequentant’,28 within the said Creek. And such prescription for a Warren would be insufficient, scil. to have all Pheasants and Partridges, nidificantes, gignentes,29 and frequenting within his Manor. But he ought to say, to have free Warren of them within his Manor: For although they are nidificantes, gignentes, and frequenting withinthemanor, he cannot have them jure privilegii,30 but so long as they are within the place. But it was resolved, That if the defendants had alleged, that within the said Creek there had been time out of mind &c. a game of wild Swans not marked, building and breeding; and then had prescribed, that such Abbot and all his Predecessors, &c. had used at all times to have and take to their use some of the said Game of wild Swans and their Cignets within the said creek, it had been good; for although Swans are royal Fowls, yet in such a manner a man may prescribe in them: for that may have a lawful beginning by the King’s grant: For in Rot. Parliam 16 Rich. 2. part. 1. numero. 3a. like grant was of wild Swans unmarked in the County of Cambridge, to B. Bereford, Knight. The like grant in Rot Parl. anno 30 Edw. 3 part 2. num. 20. the King granted to C. W. all his wild Swans unmarked between Oxford and London for seven years. In Rot. Parl. an. 1 Hen. 4. part. 6. numer. 14. A grant was made to John Fenne, to survey and keep all wild swans unmarked; ita quod de proficuo respondeat ad Scaccarium.31 |Edition: Sheppard2003; Page: [18 b] By which it appear, that the King may grant wild Swans unmarked; and by consequence a man may prescribe in them within a certain place, because it may have a lawful beginning. And a man may prescribe to have Royal Fish within his Manor, as it is held in 39 Edw. 3. 35. for the reason aforesaid. And yet without prescription they do belong to the King by his Prerogative.

Edition: current; Page: [241]

Penal Statutes.

(1605) Hilary Term, 2 James I.

Before all the Justices of England.

First Published in the Reports, volume 7, page 36b.

Ed.: Queen Elizabeth issued a grant that would allow its recipient to be free of the burdens of a penal statute, giving the grant before there was a judgment against the recipient for violating the statute. The grant also allowed the recipient to give similar dispensations to others. This is contrary to the law and will not be allowed, a view that would be reflected in the seventeenth century in England’s Bill of Rights. This case is an important illustration of common law limits on Royal authority and is essentially an enforcement of separation of powers between the Parliament and the Crown. Look for wonderful metaphors on the King’s powers in law, and their limits.

This Term upon Letters directed to the Judges to have their Resolution concerning the validity of a Grant made by Queen Elizabeth, under the great Seal, of the penalty and benefit of a penal Statute, with power to dispense with the said statute, and to make a warrent to the Lord Chancellor, or Keeper of the great Seal, to make as many dispensations, and to whom he pleased; And upon great Consideration and deliberation by all the Judges of England, It was Resolved, That the said grant was utterly against Law. And in this case these points were Resolved, 1. That when a Statute is made by Parliament for the good of the Commonwealth, the King cannot give the penalty, benefit, and dispensation of such Act to any subject; Or give power to any subject to dispense with it, and to make a warrant to the great Seal for Licences in such case to be made: For when a Statute is made pro bono publico,1 and the King (as the head of the Commonwealth, and the fountain of Justice and Mercy) is trusted the whole Realm with it; this confidence and trust is so inseparably joined and annexed to the person of the King in so high a point of Sovereignty, that he cannot transfer the same to the disposition or power of any private person, or to any private use: for it was committed to the King by all his Edition: current; Page: [242] Subjects for the good of the Commonwealth. And if he may grant the penalty of one Act, he may grant the penalty of Two, and so in infinitum.2 And such grant of a penalty was never seen in our Books. But it is true, the King may (upon any cause moving him in respect of time, place, or person, &c.) make a Non Obstante3 |Edition: Sheppard2003; Page: [37 a] to dispense with any particular person, that he shall not incur the penalty of the Statute, and therewith agree our books. But the King cannot commit the Sword of his Justice, or the Scale of his Mercy, concerning any penal Statute to any subject, as is aforesaid. 2. It was also Resolved, That the penalty of an Act of Parliament cannot be levied by any grant of the King, but only according to the purpose and purview of the Act: for the Act which gives the penalty ought to be followed only in the prosecution and levying thereof: and great inconveniences would thereon follow, if penal Laws should be transferred to subjects. 1. Justice thereby should be scandalized; for when such Forfeitures are granted, or promised to be granted before they are recovered, the same is the cause of a more violent and undue proceeding. 2. When it is publicly known, that the Forfeiture and penalty of the Act of Parliament is granted, it is a great cause that the Act itself is not executed; for the Judge and Jurors, and every other, is thereby discouraged. 3. Thereupon would follow, that no penalty should by any Act of Parliament be given to the King, but limited to such uses with which the King could not dispense. And hereupon divers who had sued to have the benefit of certain penal Laws, were upon this Resolution denied. And the Certificate of all the Judges of England concerning such grants of penal Laws and Statutes was in these words. “May it please your lordships, we have (as we are required by your honourable Letters of the 21st of October last) conferred and considered amongst ourselves (calling to us his Majesty’s Counsel learned) of such matters as were thereby referred unto us, and have thereupon, with one consent, resolved for Law and conveniency as followeth: First, That the prosecution and execution of any penal Statute cannot be granted to any, for that the Act being made by the policy and wisdom of the Parliament for the general good of the whole Realm, and of trust committed to the King, as to the head of Justice, and of the weal public, the same cannot by Law be transferred over to any subject; neither can any penal Statute be prosecuted or executed by his Majesty’s grant, in Edition: current; Page: [243] other manner or order of proceeding, than by the Act itself is provided and prescribed: Neither do we find any such grants in any former ages: And of late years, upon doubt conceived, that penal Laws might be sought to be granted over, some Parliaments have forborn to give forfeitures to the Crown, and have disposed thereof to the relief of the Poor, and other charitable uses, which cannot be granted or employed otherwise. We are also of opinion, That it is inconvenient, that the Forfeitures upon penal Laws or others oflikenature. should be granted to any other before the same be recovered or vested in his Majesty by due and lawful proceeding; for that in our experience |Edition: Sheppard2003; Page: [37 b] it maketh the more violent and undue proceeding against the subject, to the scandal of Justice, and the offence of many. But if by the industry or diligence of any, there accrueth any benefit to his Majesty, after the recovery, such have been rewarded out of the same at the King’s good pleasure, &c. Dated 8 November, 1604.” And to this Letter all the Judges of England set their hands.

Edition: current; Page: [244]

Part Eight of the Reports

The Eighth Part of Coke’s Reports was published in 1611. It was originally entitled La huictime part des Reports de Sr. Edvv. Coke. Chevalier, Chiefe Justice del Common Banke: des divers resolutions & jugements donez sur solennes arguments & avec grand deliberation & conference des tresreverends juges & sages de la ley, des cases en ley queux ne fueront unques resolus ou adjudgez par devant: Et les raison & causes des dits resolutions & jugements: publie en le neufme an de treshaut & tresillustre Jaques roi Dengl. Fr. & Irel. & de Escoce le 44. Le Fountaine de tout Pietie & Justice, & la vie de la Ley. In English, The Eighth Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of Common Pleas, of divers Resolutions and Judgments given upon solemn Arguments, and with great deliberation and Conference of the reverend Judges and Sages of the Law, of Cases in law which were never Resolved or Adjudged Before: and the Reasons and Causes thereof. Published in the Ninth year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 44., the Fountain of all Justice, and the life of the Law. This rather long part surveys a broad range of cases, particularly presenting cases on the privileges of nobility, the privileges of the City of London and the regulation of professions, although there are cases dealing with issues of property and inheritance.

That which I have written as you know (learned Reader) in some of my former prefaces of the Antiquitie & excellencie of our laws of England, hath produced these two questions: First whether Historiographers do concurre with that which there so constantly hath beene affirmed: Secondly, seeing so great and so often rehersall is made of the common Laws of England, what the body or text of the common lawe is, and consequently where a man may finde it. To both which in the end I yeelded to make answere. For the first: albeit the books and records (which are & vetustatis & veritatis vestigia)4 cited by me in the prefaces to the third and sixt parts of my Commentaries, are of that authority that they need not the aide of any Historian: yet will I with a light touch set downe out of the consent of Storie some proofes of the Antiquitie, and from the censure of those persons who in respect of their profession (for they were Monkes and Clergie men) may rather fall into a Jealousie of referuednes then flatterie, somewhat of the equitie and excellencie of our Lawes; And that it doth appeare most plaine in successiue authoritie in storie what I have positiuely affirmed out of record, That the grounds of our common laws at this day were beyond the memorie on register of any beginning, & the same which the Norman conqueror then found within this realm of England.5 The laws that Wil. Conqueror sware to observe, were bonae & approbatae antiquae regni leges,6 that is, the lawes of this kingdome were in the beginning of the Conquerours raigne good, approved, and auncient. And, that Edition: current; Page: [246] the people might the better observe their duetie and the Conquerour his oath,7 he caused twelve of the most discreete and wise men in everie shire throughout all England, to be sworne before himself, that, without swarving, either ad dextram or sinistram,8 That is, neither to flatter prerogative or extend priviledge, they should declare the integritie of their lawes without concealing, adding, or in any sort varying from the truth. And Aldred the Archbishop that had crowned him, and Hugh the Bishop of London, by the Kings commandement wrote that which the said Jurats had delivered: And these (as saith Ingulphus9) by publike proclamation, hee declared to bee authentike, and, for ever, under grievous punishment, to bee inviolably observed.10 The summe of which, composed by him into a Magna Charta (the groundworke of all those that after followed) hee blessed with the seale of securitie & wish of eternitie, closing it up with this generall: And wee further commaunde that all men keepe and observe duely the Lawes of King Edward: rearing up the frontispice ofhisgratious worke with his glorious stile, Willielmus Dei gratia Rex Anglorum, Dux Normannorum, Omnibus hominibus suis Francis & Anglicis Salutĕ. Statuimus imprimis super omnia vnum Deum per totum regnum nostrum venerari, vnam fidem Christi semper inuiolatam custodiri, pacem & securitatem et concordiam, iudicium & Iusticiam inter Anglos & Normannos, Francos & Britones Walliae & Cornubiae, Pictos & Scotos Albaniae, similiter inter & Insulanos, provinoias et patrias quae pertinent ad coronam et dignitatem, defensionem & obseruationem & honorem regni nostri, et inter omnes nobis subiectos per vniuersam Monarchiam regni Britaniae firmitèr & inuiolabilitèr obseruari.11W. Ruf. that succeeded his father,12 so exceeded himself in misrule & oppression, that there is left no register of his goodnes in this kind, for in his time the kingdom was oppressed Edition: current; Page: [247] with unjust exactions, & the Justice corrupted with evill usages, as appeareth by the great charter of his succeeding brother, king Henrie the first,13 who therby tooke away all the evill customes wherewith the kingdome of England was unjustly oppressed, and restored the Lawe of King Edward, (such Lawe as was in the time of the holy Confessor) with those amendments which his father added by the advise of his barons. What these were Math. Paris14 (who hath inserted the Charter in his storie) declareth to be the ancient Liberties and Customes which flourished in this kingdome in the time of holy king Edw. And herewith agreeth Hoveden15 in these words: King H. the first took away all the evil customes & unjust exactions wherwith the kingdome of England was unjustly oppressed: he setled an assured peace in his whole kingdome, and commanded the law of king Edward to be observed, he restored to all &c. The which, almost in the same phrase, Florentius16 a Monke of Worcester, and living in the raigne of Henry the first, observeth. And by whome the Injustice of the foregoing age proceeded, and by whome and how redressed William17 the Monk of Malmesbury delivereth in these words: Henrie born in England, of kingliebirth, &c. by his proclamation speedily sent through England: restrained the injustice brought in by his brother and Ranulph &c. and abolished the unwonted lenitie of some lawes, giving assurance by his owne and all the Nobilities oth, that they should not be deluded &c. K. Stc. that succeeded his uncle, confirmeth in his great Chartre of liberties to the barons & commons of Eng. in these words,18All the Liberties and good lawes which H. king of England my Uncle graunted unto them: And I graunt them all the good lawes and good customes which they enjoyed in the raigne of K. Edw. and was so jealous of invocation, as Roger Bacon19 the learned Frier saith in his book, de impediments sapientiae: King Stephen forbad by publicke edict that no man should reteine the Lawes of Italie formerly brought into England. The next to this man was Hen. 2. who in another great Charter established the former Lawes in these words.20 Henrie by the Edition: current; Page: [248] grace of God King of England, duke of Normandie, and Aquitaine, Earle of Aniou, to all Earles, Barons, and his faithful Subiects of France, and England, Greeting, Know ye that I, to the honour of God & holy Church, & for the common amendment of my whole kingdome, have graunted and restored, And by my Charter confirmed to God and holy church, and to all Earles and Barons, and to all my Subjects, All grants and donations, & liberties and free customes, which king Henry my Grandfather gave and graunted unto them. And all those evill customes which he abolished and remitted, I likewise doe remit, and for me and my heires doe agree shall be abolished. By which words it appeareth, that he had reference to that Charter of his Grandfather that abolished the unjust exaction and usages of his brothers raigne, and confirmed the old and excellent laws under Saint Edwards government. And no lesse ancient, even by the like authorities will appeare the customes of some of our Cities: For of London saith Fitzstephen21 (a Monke of Canterburie) it was built before that of Remus and Romulus (meaning Rome) wherefore even to this day they use the same ancient laws publike Ordinances &c. Let us descend a little lower to the times of King John the son of Henrie the 2. He in the 17. yere of his raign made the two great Charters, the one called Magna charta (not in respect of the quantitie but of the weight) & the other Charta de Foresta, which are yet extant to this day. Of which the Monk of Saint Albons faith,22Quae ex parte maxima leges antiquas & regni consuetudines continebant: that is, which for the most part did conteine the ancient lawes and customes of this Realme. And soone after he saith: And those lawes and liberties which the Nobilitie of the Realme did there seeke to confirme, are partly in the above said Charter of king Henrie, and partly taken out of the ancient lawes of King Edward: not that king Ed. the Confessor did institute them, but that he out of the huge heape of the lawes, &c. chose the best and reduced them into one, as in the preface to the third part of my reports more at large it appeareth. The said great charters made by king John are set downe in haec verba in Math. Par. pa. 246.23 and in effect doe agree with Magna Charta24 and Charta de Foresta established & confirmed by the great charter made in 9. H. 3. which for their excellencie have since that time beene Edition: current; Page: [249] confirmed & commanded to be put in execution by the wisdome & authoritie of 30. severall parliaments and above. And these Laws are in the Register in many writs called Liberties, for there it is said, according to the tenor of the great charter of the liberties of England, so called of the effect, because they make free: And Math. of Par. and others (as it appeareth before) stileth them by the same name. So as the antiquitie and excellencie of our common lawes doe not only appeare by Historians of our owne persuasion in Religion, but by these monasticall writers: the which I have added the more at large in this point to that which I affirmed in my former prefaces, to the end that they agreeing together, may the better persuade both parties to agree to the truth manifestly proved by many unanswerable arguments in the said preface to the third part, and by the authoritie of Sir John Fortescue chiefe Justice in the raign of K. Henry the sixth amongst others at large cited in my preface to the 6. part, by all which it is manifest, that in effect the verie bodie of the common lawes before the conquest are omitted out of the fragments of such acts and ordinances as are published under the title of the Laws of king Alured, Edward the I. Edward the second, Ethelstane, Edward, Edgar, Etheldred, Canutus, Edward the Confessor, or of other kings of England before the Conquest. And those few chapters of Lawes yet remaining, are for the most part certaine acts and ordinances established by the said severall kings by assent of the common councell of their kingdome. As for the excellencie of our municipall lawes I will adde to that which hath been said before, that the monk of Crowland25 calleth them the most just lawes, and Math. of Westmn26 of them saith: They being by the appointment of king Knute translated out of English into Latine, were by him for their equity commanded to be observed as well in Denmarke as in England. And of this matter thus much shall suffice. But yet before I take my leave of these Historians, I must incounter some of them in two maine points. First, that the trial by Juries of 12. men (which is one of the invincible arguments of the antiquitie of the common laws, being only appropriated to them) was not instituted by the powerful wil of a Conqueror, as some of them peremptorily affirme they were. The 2. that the Court of common pleas was not erected after the statut of Magna Charta (which was made in the 9. yere of king Henry the third) contrary to that which others do hold. For the first, I Edition: current; Page: [250] referre the learned Reader to the preface before the 3. part of my Reports, where he shall receive full & cleare satisfaction herein, and will onely adde the judgement of the great ornament (in his kinde) of this kingdome in his Britania pag. 109. with which I wil conclude this point: But wheras Polidore Virgil writeth, that Wil. the Conqueror first brought in the trial by 12. men, there is nothing more untrue, for it is most certaine and apparent by the laws of Etheldred, that it was in use many yeres before: Neither hath hee any cause to terme it a terrible Judgement; for free-borne and lawfull men, are duly by order impanelled & called forth of the neighborhood; these are bound by othe to pronounce and deliver up their verdit touching the fact; they heare the counsell plead on both sides before the bench or Tribunal, and the depositions of witnesses, the taking with them the evidences of both parties, they are shut up together and kept from meat drink and fire (unlesse peradventure some one of them bee in danger of death) until they be agreed of the matter in fact: which when they have pronounced before the Judge he according to Law giveth sentence. For this manner of triall our most wise & provident ancestors thought the best to finde out the truth, to auoid corruption, & to cut off all partiality & affections. And for the excellencie and indifferencie of this kinde of triall, and why it is onely appropriated to the common lawes of England, reade Justice Fortescue cap. 25. 26. 27. 28. 29. 30. 31. 32.&c. which being worthy to be written in letters of gold for the weight and worthines thereof, I will not abridge any part of the same, but referre the learned Reader to the fountaine it selfe.

As to the second, it is clearer then the light at noon day, that the court of Common pleas was not erected after the statute of 9. H. 3. Cap. 1. 1. Common pleas shall not follow our Court, but shal be holden in some place certaine. First, at the same time, and in the same great Charter, and in the next Chapter saving one, the Court of common pleas is expresly named; Assises of Darreine presentment shall alwaics bee taken before the Justices of the Bench, & no man doubteth but Justiciarÿ de Banco are Justices of the Common pleas. 2.King Henry the first, the sonne of the Conquerour, by his Charter, graunted to the Abbot of B. a Charter of confirmation of all his usages &c. And further graunted, that hee should have Conusance of all manner of pleas, so that the Justices of the one bench, or of the other, or Justices of Assise, should not meddle &c. and this Charter appeareth in 26. lib. Ass. pl. 24.27 3. In the booke Edition: current; Page: [251] case of 6. Edw. 3. fol. 54. 5528 it appeareth, that 15.29Mich. in the sixt yere of king Richard the first, a fine was levied betweene the Abbot of S. and Theoband C. of the advowson of the Church of Preston, before the Archbishop of Canterbury, the Bishop of Rochester and others (Justices del Banke, that is, of the court of common Pleas.) And it appeareth in Master Plowdens Com. in Stowels case,30 that fines were levied before the Conquest. In the Treasorie there are yet remaining some fragments of records and judgements in the raigne of king Rich. the 1. as wel coram Justiciariis de Banco, as coram Rege. Martin de Pateshull was made Justiciarius de Banco in the first yere of H.3.31 which was before the statute of Magna Charta. And in an. 10. Ed. 4. fo. 5332 all the Judges of England did affirme, that the Chauncery, Kings Bench, Common-place, and Eschequer, be all the kings Courts, and have bene time out of memory of man; so as no man knoweth which of them is the most auncient. But in a case so clere this shall suffice. And yet let me observe, that divers Bishops and other Ecclesiasticall persons in ancient time, did studiously reade over the lawes of England, and thereby attained to great and perfect knowledge of the same. And the saide Martin de Pateshull who was, as before is saide, chiefe Justice of the Court of Common pleas in the first yere of king Hen. the third, was also Deane of Paules; of whome it is said that he was a man of great wisdome and exceeding well learned in the Lawes of this Land. And John Britton33 bish. of Hereford, wrote an excellent worke in the daies of King Edward the 1. of the common lawes of England, which remaine to this day. And many Noblemen have been excellently learned in the laws of England, as taking one example for many, least this preface should grow too large, Ranulphus de Meschives the great and worthy Earle of Chester and the third and last of that family, (having as mine Author saith) great knowledge and understanding in the lawes of this Land, compiled a Booke of the same Lawes, as a witnesse of his great skill therein: of whom Mathew Par. pag. 350.34 reporteth (as an effect of his learning and knowledge in the Lawes of this Realme:) But Ranulph Earle of Chester alone Edition: current; Page: [252] valliantly resisted, as not willing to bring his Countrey into servitude (by paying of Tenths to the Pope:) And would not suffer the religious or Clerkes of his fee to pay the sayde Tenths, although all England and Wales, Scotland and Ireland, were compelled to pay them. And at a partiament holden in the twentieth yeare of king Henry the third,35 the Act saith: All the Bishops desired the Lordes that they would consent, That all such as were borne afore Matrimony should be legitimate as well as they that be borne within Matrimony, as to the succession if inheritance, forasmuch as the Church accepteth such for legitimate: And all the Earles and Barons with one voyce answered, That they would not change the laws of this Realme, which hitherto have beene used and approved. Which uniforme and resolute answere of all the nobilitie of England, nullo contradicente,36 doth shew the inward and affectionate love & reverence they bare unto the common Lawes of their deere Countrie. The certaine and continual practise of the common lawes of England soone after the Conquest, even in the time of King Henry the first the Conquerours sonne (which almost was within the smoake of that fierie Conquest) and continued ever since, doe plainely demonstrate that those lawes were before the dayes of William the Conquerour. For it had not beene possible to have brought the Lawes to such a perfection as they were in the raigne of King Henry the second succeeding, if the same had beene so sodainely brought in or instituted by the Conquerour: Of which lawes this I will say, That there is no humane Lawe within the circuit of the whole world, by infinite degrees, so apt and profitable for the honorable, peaceable, and prosperous governement of this kingdome, as these auntient and excellent lawes of England be.

Ranulphus de Glanuilla chiefe Justice, in the raigne of King Henry the second, learnedly and profoundly wrote of part of the Laws of England (whose workes remaine extant at this day:) and in his preface he writeth, That the king did governe this realme By the lawes of the kingdome, and by customes founded upon reason, & of antient time obtained. By which words spoken so many hundred yeres since, it appeareth, that then there were Lawes and Customes of this kingdome grounded upon reason and of antient time obtained, which hee neither could nor would have affirmed, if they had beene so recently and almost presently before that time instituted by the Conquerour. And in Edition: current; Page: [253] token of my thankfulnes to that worthy Judge,37 whom I cite many times in these Reports, (as I have done in my former) for the fruit, which I confesse my selfe to have reaped out of the faire fieldes of his labors, I will, for the honor of him, and of his name and posteritie, which remaine to this day (as I have good cause to know) impart and publish both to all future and succeeding ages which I have found of great antiquity, & of undoubted verity; the original wherof remaineth with me at this day, and followeth in these words. Ranulphus de Glanvilla Justiciarius Angliae,38fundator fuit domus de Butteley39in com’ Suff. quae fundata erat anno Regis H. filii imperatricis 17. & anno dom’ 1171. quo anno Tho. Becket Cantuar’ archiepiscopus erat occisus. Et dictus Ranulphus nascebatur in villa de Stratford in com’ Suff. & habuit manerium de Benhall cum toto dominio ex dono dicti regis40 H. Et duxit in uxorem quandam41 Bertam filiam domini Theobaldi de Valeymz senioris, dom’ de Parham, qui Theobald per cartam suam dedit dicto Rañ & Bertae uxori suae totam terram de Brochous cum pertin’, in qua domus de Butteley sita est, cum aliis terris & tenementis in libero maritagio. Pradictus verò Ranulphus procreavit tres filias de dicta42 Berta, viz. Matildam, Amabiliam, & Helewisam, quibus dedit terram suam ante progressum suum versus terram sanctam.43 Matilda, prima soror, habuit ex dono patris sui totam villam de Benhall integralitèr unà cum advocatione ecclesiae five monasterii beatae Mariae de Butteley, & nupsit cuidam militinomine Will de Auberuille, de quibus processit Hugo de Auberuille, de ipso Hugone Will de Auberuille, de ipso Willielmo processit quaedam Johanna filia unica & haeres, quae nupsit cuidam militi de Cancia nomine Nicholao Kyryell qui duxit in uxorem Margaretam filiam dom’ Galfridi Peche; & ille Nich’ vendidit dom’ Guidoni Ferr̄ praedict’ manerium de Benhall: & tum ille Nich’ de uxore sua genuit alium dom’ Nich’ militem in Cancia, qui vixit ante primam pestilentiam. Ipse autem Guido talliavit praedictum maner’ in cur’ dom’ Regis apud Westm’ in crastin’ Ascensionis dom’, anno regni regis E. filij E. primo, sibi & Alianorae Edition: current; Page: [254]uxori suae & haeredib’ dese exeunt’: Et si ipse Guido sine haerede decederet, rem’ Wil’ de S. Quintino & haeredibus. Amabilia, secunda soror, habuit ex dono patris sui medietatem vill’ de Bawdeseia & medietatem vill’ de Fynbergh. Amabilia praedicta habuit virum nomine Radulphum de Ardern, de quo processit Tho. de Ardern filius & haeres, De Th’ Radul filius & haeres, qui feossauit priorem & conuentum de Butteley de medietate villae de Bawdesey. De predicto Radulpho processit quidam Tho. Ardern filius & haeres. Helewisa, tertia soror, habuit ex dono patris sui aliam medietatem villae de Bawdesey praedicta, et aliam medietatem villae de Fynbergh praedicta. Helewisa praedicta habuit virum nomine Robertũ filium Rob. de quo processit Rad’ filius et haeres, qui feoffavit Warinum de Insula de medietate praedicta villae de Fynbergh. De Rad’ processit Rob’ filius & haeres qui feoffavit Ran’ fratrem suum de medietate praedicta villae de Bawdesey. Et nota, quod praefatus Ranulp’ de Glanuilla fuit vir praeclarissimus genere, utpote de nobili sanguine,44vir insuper strenuissimus45corpore,46qui provectiori aetate ad terram sanctam properauit,47& ibid’ contra inimicos crucis Christi48strenuissimé usq; ad necem dimicauit. Fuit autem Berta49ex illustri prosapia orta, filia dom’ Theobaldi Valeymz senioris domini de Parham, quorum & Ranulphi & Bertae50consanguinei multi, de quibus plures milites, omnes vero gentiles & generosi, istam partem Suff. eorum incolatu & generosa carnispropagine honorificè illustrabant annis multis.51 And Henr’ de Bracton a Judgeofthisrealm, Edition: current; Page: [255] in the raigne of K. Henry the third in his first chapter of his first Booke Numerotertio saith: I Henry de Bracton have set my mind to serch out diligently the ancient Judgements of the just, not without much paines and labor &c. So as he stileth the laws of England by the name of The auncient Judgements of the Just. The author of the Booke called Fleta (who wrote in the raigne of king Edward the first) in his Preface to his Worke agreeth with Glanvill concerning the Antiquity and honor of the lawes of England, and there sheweth the reason wherefore he intitled his book by the name of Fleta: But this Treatise which may worthily be called Fleta, because it was compiled, in the Fleete, of the Lawes of England. I have a Register of our Writs originall, written in the raigne of K.H.2. (in whose time Glanvill wrote) containing the originall Writs which were long before the Conquest, as in the said Preface to the third part appeareth, and yet also remaining in force, such excepted as have been instituted or altered by Acts of parliamént since that time, which is the most ancient booke yet extant of the Common law, and so ancient, as the beginning whereof cannot be shewed. To the 2. question I doe affirme, That the Statutes of Magna Charta, Charta de Foresta, Merton, Marlebridge, Westm’ I. De Bigamis, Gloc’, Westm’ 2, Articuli super cartas, articuli Cleri, statutum Eboraic, Praerogativa Edition: current; Page: [256] regis, and some few others, that be auncient, amongst which, the statute of 25. E. 3. is not to be omitted, touching tresons (which for the most part are but declarations of the Common law) together with the original writs contained in the Register concerning comon pleas, and the exact & true formes of Inditements & Judgements thereupon in criminall causes, are the very body, & as it were the very text of the common lawes of England. And our yeare Bookes and Records yet extant for above these 400. yeares, are but Commentaries and Expositions of those lawes, originall writs, inditements and judgements. By two cases, the one of Jebu Webbe, & the other called Blackamores case now among others published & resolved in this blessed &florishing spring time of his Majesties Justice, specially (among many others) it appeareth, that our Booke cases and Records are also right Commentaries, and true Expositions of Statutes and Acts of parliament. And for an example of an originall writ, among many other, I referre the studious Reader especially to Calyes case in Pasc’ 26. of the raigne of the late Queene Eliz. of ever blessed memorie, now published, whereby it more clerely appeareth how iudicious the opinion of Justice Fitzh. is in his preface to his N.B. where he saith, that originall writs are the foundations whereupon the Law dependeth, & how truly he calleth thé the Principles of the law, & fortifieth also the opinion of Bracton li. 5. fo. 413. where he faith, that (Breue formatum est ad similitud’ regulae iuris:52) which Case I have reported in that forme to this end, that Students seeing the singuler use of original writs, wil in the beginning of their study learn them, or at least the principallest of them without booke, whereby they shal attaine unto 3.things of no smal moment: 1. to the right understanding of their books: 2. to the true sense & judgement of law: & lastly, to the exquisit forme & maner of pleding. And the Case of Barretry standeth for an example of an inditement. The neglect of Assises & reall actions hath produced 2. inconueniences in the Common wealth, & a 3. is (if it be not stept on already) like to insue: 1. the multitude of suits in personall actions, wherein the realty of freehold & inheritance is tried, to the intollerable charge and vexation of the subject: 2. multiplicitie of suits in one and the same Case, wherein oftentimes there are divers verdits on the one side, and divers on thother, and yet the pf. or def. can come to no finite end, nor can hold the possession in quiet, though it be often tried & adjudged for either party. And Edition: current; Page: [257] this groweth, for that the right institution of the Lawe is not obserued, to the uniust slander of the common law, & to the intollerable hindrance of the common wealth. In personall actions concerning debts, goods, & chattels, a recovery or bar in one action is a bar in another, and there is an end of the controversie. In reall actions for freehold & inheritance, being of a higher & worthier nature, & standing upon greater variety of titles & difficulties in law, there could not be above 2. trials, or at the most (& that very rarely) 3. and in the mean time, after one recovery, the possession resteth quiet. 3. The discontinuance of real actions will produce in the end 2. dangerous effects, viz. want of true judgement in the Professors of the Law, & grosse ignorance in Clerks of the right entries & proceedings in those Cases. We see that workes of Nature are best preserved from their owne beginnings, frames of Policy are best strengthned from the same ground they were first founded, & justice is ever best administred when Laws be executed according to their true and genuine institution. And therefore to the end the ancient & excellent institution of the Common Law might be recontinued for the good of the common wealth, (For it is convenient for the commonwealth, that there be an end of controversies.) I have therfore reported 2. Cases of Assises, for that the writ of Assise (in case where it lieth) is optimum & maxime festinum remedium:53 And the cases of Buckmere & Syms of writs of Formedon in remainder: & Ed. Altuams case of a writ of Dower. And we, that are Judges of the Realm, have resolved to cut off al superfluous & unjust delaies, & as much as we can, all fained dilatory & curious pleadings: the admittance whereof, of late time, hath bin a great cause why reall actions, & specially writs of Assise, have not bin so frequent as they have been. And though in reall actions, as the weight of the cause requireth, there are longer times given in the proceeding, then in personall actions, as appeareth in Justice Fortescues booke ca. 53. (where it appeareth that those times are neither overlong, nor without just cause; For many times in deliberations judgements grow to ripenes, but in over hastie processenever:) yet shal the demaundant come to a timely finall end by these reall actions, which he shall never do by prosecution of personall actions for the triall of freehold or inheritance. And they that well observe the three parts of the Reports in the raigne of king E. 3. shal find few or no actions of trespas or personal actions brought concerning any lands or tenements, but either where Edition: current; Page: [258] no title of freehold or inheritance came in question, or where the plaintife could not have any reall action: and therfore amongst many others it appeareth in an action of trespas Quare clausum fregit54 brought by the B. of Coventry & Lichfield in 6. Ed. 3. fo. 34. b. exception was taken to the replication of the B. for that he pleaded in the realty, for alwaies in those daies real cases were determined in real actions, which made the Judges in those times to merit that honorable testimony which Thirning chiefe Justice attributeth to them in the 12. yere of the raigne of K. Henry the fourth that they were the greatest Sages that ever were: & that in the raigne of K. Edward the third the law was of the greatest perfection that ever it was; & that pleding (the greatest honor & ornament of the law) grew in the raigne of that king to that excellency, as that the pleading in former times having regard to the pleadings in the raigne of king E.3. are holden by Thirning to be but feeble. I have reported the great case of the duchy of Cornwall for divers causes. 1. Although this very case hath bin long since (as shal appere in this Report) judicially adjudged, yet hath the same of late bin called in question againe, partly for that the said judgements remain privatly amongst the rest of the kings Records, unknown but to a few, & partly, for that the resons & causes of the judgements being (according to law) not expressed in the Record it self, gave no ful & cleere satisfaction: but principally, for that there was no report made & published of the true causes & resons of those resolutions & judgements. 2. To the end that such as have not any part therof, may hereby be instructed of the true state of the possessions of this duchy, & by this means be admonished how they deale with any that have bought or purchased any of these possessions; & that such as have acquired or gotten any of them, knowing that the judgement was given in this case, both upon many direct authorities in the point, & upon plain & demonstrative reason (the 2. main causes of true satisfaction) may therwith rest satisfied. The last, but not the least, is, for that the most noble & excellent Prince, who is omine nomine numinemagnus,55 &thegreatest that ever was before him, hath in his first Cause in hoc forensi dicendi genere56 gotten victorie. I have for some respects reported the same in Latin, wherein I have been contented potiùs scribere propriè quam Latinè;57 & for that the Edition: current; Page: [259] words of art which wil beare no translation, are herein so many & so frequent, I have added the report therof in the vulgar language, that the reader may use either of them at his pleasure. There are certein other cases now published by me, concerning some of the most abstruse darke & difficult points in the law, & yet very necessary to be known, as in Arthur Blackamores case concerning Amendments, Beechers case of a Retraxit, departure in despite of the Court, & of Fines and Amercements, Greisleyes case of affearing of Amercements, & some others. And I have of purpose done these as plainly and cleerly, and therewith as briefly as I could. For the lawes are not like to those things of Nature, which shine much brighter through Cristall or Amber, then if they be beheld naked: nor like to Pictures that ever delight most when they are garnished & adorned with fresh and livelie colors, and are much set out & graced by artificial shadowes. And, whether it be in respect of the matter, or my yeres growing fast on, being now in the 60. yere of mine age, or for what other respect soever it be, sure I am I have felt this eighth Work much more painfull then any of the other have been unto me. And yet hath almighty God of his great goodnes (amidst my publike imploiments) enabled me hereunto. And as the Naturalists say, that there is no kinde of bird or fowle of the wood or of the plaine that doth not bring somewhat to the building & garnishing of the Eagles nest, some, cinnamon and other things of price, and some, juniper and such like of lesser value, every one according to their quality, power, and ability: so ought every man according to his power, place, and capacity to bring somewhat, not onely to the profit and adorning of our deere Conntrey (our great Eagles nest) but therein also, as much as such mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Majesties happy & blessed government to al posterity. And for that I have been called to this place of Judicature by his Majesties exceeding grace & favor, I hold it my duty, having observed many things concerning my profession, to publish amongst others certaine Cases that have been adjudged andresolved since his Majesties raigne in his highest Courts of ordinary Justice in this calme and florishing spring time of his Majesties justice, amounting with those of my former edition in al to 84. And (if it shall please God) I intend hereafter to set out an other Worke, whereof I have onely collected the materials, but not reduced them to such a forme as I intend, left if I should leave it as it is, it might, after my death, be published (as hath bin done in the like case) before it be perfected. Your extraordinary alowance of my former Works, together with your continuall and earnest desire of other Editions, have much incouraged Edition: current; Page: [260] me to undertake these paines: And if you shall reape in your studies such profit thereby, as I from my heart desire, and as you (from your desire of knowledge) doe expect, then shall my Labors seeme light unto me, for my expectation shall be satisfied.

Ed.: William Wilde and Robert Vynior had agreed on a bond, by which Wilde owed Vynior £20 15s, with a variety of accompanying obligations and under which any disagreement about performance of the terms of the bond would be decided by William Rugge as arbitrator. Vynior sued Wilde for breach of his obligations, and Vynior argued that Wilde should rely on a decision of Rugge’s. In this case, the power to enter into a binding agreement to arbitration is rejected under the view that the power to revoke an authority in another person to arbitrate was irrevocable. Vynior won.

Robert Vynior brought an action of debt against William Wilde upon an obligation of 20 1. 15 Julii anno 6 of the same king. The Defendant demanded Oyer of the Bond and of the Condition endorsed, which was, That if the above bounden William Wilde do, and shall from time to time, and at all times hereafter, stand to, abide, observe, perform, fulfil, and keep, the rule, order, judgment, arbitrament, sentence, and final determination of William Rugge, Esquire, Arbitrator indifferently named, elected, and chosen, as well on the part of the said William Wilde, as on the part of the said Robert Vynior, to rule, order, adjudge, arbitrate, and finally, determine all matters, suits, controversies, debates, griefs, and contentions, hereto moved and stirred, and now depending between the said parties, touching or concerning the sum of Two and twenty pence heretofore taxed upon the said William Wilde, for divers kinds of Parish business, within the parish Edition: current; Page: [261] of Themilthorpe in the county of Norfolk, so as the said award be made and set down in writing under the hand and seal of the said William Rugge, at or before the Feast of St. Michael the Archangel next ensuing, after the date of these presents, That then, &c. And the Defendant pleaded, That the said Will. Rugge, nullum fecit arbitrium de et super praemissis, &c.1 The Plaintiff replyed, That after the making of the said Writing obligatory, and before the said Feast of St. Michael, scil. 22 Aug. Anno 6, supradicto apud Themilthorpe praed’ praedict’ Willihelm’ Wilde per quodd’ script’ suum cujus datus est eisdem die et anno revocavit et |Edition: Sheppard2003; Page: [82 a]abrogavit, Anglice, did call back, omnem authoritatem quamcunque quam idem Willielmus Wilde per praed’ scriptum obligatorium dedisset, et commisissetpraefat’ Willielmo Rugge arbitratori suo, et adtunc totaliter deadvocavit, et vacuum tenuit totum et quicquid dict’ Willielmus Rugge post deliberationem ejusdem scripti sibi faceret in et circa dict’ arbitrium regulam, &c. unde ex quo praed’ Wil’mus Wilde post confectionem praed’ scripti, et ante praed’ Festum Sancti Michaelis tunc prox’ sequen’ in forma praed’ exoneravit, et abrogavit arbitratorem praed’ de omni authoritate arbitrandi de et super praemissis in conditione praed’ superius specific’ contra formam et effectum conditionis illius, et submissionis in ead’ mention’ idem Robertus petit judicium, &c.2 Upon which the Defendant did demur in law. And in this case 3. points were resolved.

1. That although William Wilde the Defendant was bound in a Bond to stand to, abide, observe, the rule, &c. arbitrament, &c. yet he may countermand the same; for a man cannot by his act make such authority, power, or warrant not countermandable, which by the Law and of his nature iscountermandable; As if I make a Letter of Attorney to make livery, or to sue an Action in my name; or if I assign Auditors to take an account; or if I make one my Factor; or if I submit myself to an Arbitrament; although that these are done by express Edition: current; Page: [262] words irrevocably, yet they may be revoked: So if I make my Testament and last Will irrevocably, yet I may revoke it, for my act or my words cannot alter the judgement of the Law to make that irrevocable, which is of its own nature revocable. And therefore (where it is said in 5 Edw. 4. 3. b. If I be bounden to stand to the award which I. S. shall make, I could not discharge that arbitrament, because I am bound to stand to his award, but if it be without Obligation it is otherwise) it was Resolved, that in the one case or the other the authority of the Arbitrator may be revoked; but then in the one case I shall forfeit my bond, and in the other I shall forfeit nothing; for, ex nuda submissione non oritur actio:3 and therewith agreeth Brooke in abridging the said book of 5 Edw. 4. 3. b. and so the book of 5 Edw. 4. is well explained. Vide (31 Hen. 6. 30 28, Hen. 6. 6b. 49 Edw. 3. 9a. 18 Edw. 4. 9. 8 Edw. 4. 10.)

2. It was Resolved, That the Plaintiff need not aver, that the said William Rugge had notice of the said Countermand, for that is implied in these words, revocavit et abrogavit omnem authoritatem, &c.4 for without Notice it is no revocation or abrogation of the authority: and therefore if there was no Notice, then the Defendant might take issue, quod |Edition: Sheppard2003; Page: [82 b]non revocavit, &c.5 and if there was no notice, it shall be found for the Defendant; as if a man plead, quod feoffavit, dedit,6 or demisit pro termino vitae,7 the same implieth Livery, for without Livery, it is no Feoffment, gift, or demise; But there is a difference when 2 things are requisite to the performance of an act, and both things are to be done by one and the same party, as in case of Feoffment, gift, demise, revocation, countermand, &c. And when two things are requisite to be performed by several persons; as of a grant of a Reversion, attornment is not implied in it, and yet without attornment the grant hath not perfection, but for as much as the grant is made by one, and the attornment is to be by another, it is not implied in the pleading of the grant of one; but in the other case both things are to be done by one and the same party, and that maketh the difference. And therewith agreeth 21 Hen. 6 30a. where William Bridges brought an action of debt for 2001 upon an arbitrament against William Bentley; Edition: current; Page: [263] the Defendant pleaded, that before any Judgment, or Award made by the Arbitrators, the said William Bentley discharged the Arbitrators at Coventry, in the county of Warwick; and the same was holden a good barr and yet he did not averr any Notice to be given. So it is adjudged in (28 Hen. 6. 6 6 Hen. 7. 10, &c.)

3. It was Resolved, That by this Countermand or revocation of the power of the Arbitrator, the Obligee shall take benefit of the Obligation and that for two causes. 1. because he hath broken the words of the Condition, which are That he should stand to, and abide, &c. the rule, order, &c. and when he countermands the Authority of the Arbitrator, he doth not stand to and abide, &c. which words were put in such Conditions, to the intent that there should be no countermand, but that an end should be made by the Arbitrator of the Controversie, and that the power of the Arbitrator should continue till he had made an Award; and when the Award is made, then there are words to compel the parties to perform it, scil. observe, perform, fulfil, and keep the rule, order, &c. and this form was invented by prudent Antiquity; and it is good to follow in such cases the ancient forms and precedents, which are full of knowledge and wisdom; and with this Resolution agreeth the said book of 5 Ed. 4. 3b. which is to be intended, as above said, ut supra, That the Obligor cannot discharge the Arbitrament, but that he shall forfeit his bond, and the book giveth the reason, which is the cause of this Resolution, scilicet,8 because I am bound to stand to his award scil. to stand to his award, which I do not when I discharge the Arbitrator. The other reason is, because the Obligor by his own act hath made the Condition of the Obligation (which was endorsed for the benefit of the Obligor, to save him from the penalty of the Obligation) impossible |Edition: Sheppard2003; Page: [83 a] to be performed, and by Consequence his Obligation is become single, and without the benefit or help of any Condition, because he hath disabled himself to perform the Condition Vide (21 Edw. 4. 55 per Choke, & 18 Edw. 4. 18b & 20a) If one be bounden in a Obligation, with Condition that the Obligor shall give leave to the Obligee for the time of 7 years to carry wood, &c. in that case although he gives him leave, yet if he Countermands it, or disturbs the Obligee, the obligation is forfeited. And afterwards Judgement was given for the Plaintiff.

Edition: current; Page: [264]

Dr. Bonham’s Case.

(1610) Hilary Term, 7 James 1.

In the Court of Common Pleas.

First Published in the Reports, volume 8, page 113 b.

Ed.: This is, perhaps, Coke’s most famous case and most famous report, although he likely did not see it as startling as it would be thought in later generations. The College of Physicians held a concession in their charter under an act of Parliament giving it the sole right to license anyone who would practice medicine in London. Thomas Bonham was amedicaldoctor educated in the University of Cambridge, who began to practice medicine in London in 1606. He was examined by the College of Physicians, who refused to qualify him to practice. Bonham continued in practice and the censors fined him £5 and ordered him to stop. He continued and refused to obey the College’s orders. The president and censors of the college and their two servants arrested Bonham. Bonham sued them for false imprisonment. Coke, sitting in Common Pleas but with the agreement of Fleming, the Chief Justice of the King’s Bench, ruled that the language of the charter was not designed to give the college the right to imprison for unlicensed practice in order to benefit the public but to maintain the monopoly of its members and graduates, that the president did not have the power to fine, that proceedings of such a body should be recorded in writing and not done by voice alone, that any fines they collected belonged to the King and not to the College, and that the provision of the charter that allowed imprisonment must be read very strictly in order to prevent the loss of a subject’s liberty at the pleasure of others. In reaching these conclusions, Coke noted that the College cannot be a judge in a case to which it is a party. He then considered whether the censors were judges, and stated that in many cases the common law will void acts of Parliament when they are “against common right and reason, or repugnant, or impossible to be performed.” This is often thought to be the first judicial statement of a power of judicial review over legislation. As to other invalid restraints from professions, see Case of the Tailors of Ipswich, p. 390, and for restraints of trade, see Case of the Monopolies, p. 394.

Edition: current; Page: [265]

|Edition: Sheppard2003; Page: [114 a] Thomas Bonham, Doctor in Philosophy and Physick brought an action of false imprisonment against Henry Atkins, George Turner, Thomas Moundford, and John Argent, Doctors in Physick, and John Taylor, and William Bowden Yeomen, For that the Defendants, the 10 of Novemb. anno 4 Jacobi, did imprison him, and detain him in prison by the space of 7 days. The Defendants pleaded the Letters Patents of King Henry the 8. bearing date the 23 of Septemb. in the 10 year his reign, by which he reciteth, Quod cum regii officii sui munus arbitrabatur ditionis suae hominum faelicitati omni ratione consulere, id autem vel imprimis fore si improborum conatibus tempestive occurreret, &c.1 By the same Letters Patents the King granted to John Chambre, Thomas Linacre, Ferdinando de Victoria, John Halswel, John Frances, and Robert Yaxley, quod ipsi omnesque homines ejusdem facultatis de et in civitat’ London sint in re et nomine unum corpus et communitas perpetua, per nomen praesidentis et Collegii, sive communitatis facultatis medicinae London, &c.2 And that they might make meetings and Ordinances, &c. But the case at Bar dothprincipally consist upon two Clauses in the Charter. The first, Concessimus etiam eisdem praesidenti et Collegio seu Communitati et successoribus suis, quod nemo in dicta Civitate, aut per septem milliaria in circuitu ejusdem, exerceat dictam facultatem Medicinae, nisi ad hoc per dicts praesidents et Communit. seu successores suos, qui tempore fuerint, admissus sit per ejusdem praesidentis et Collegii Literas sigillo suo communi sigillat. sub poena centum |Edition: Sheppard2003; Page: [114 b]solidorum pro quolibet mense quo non admissus eandem facultatem exercuerit, dimidium inde Domino Regi et haeredibus suis, et dimidium dict’ praesidenti et Collegio applicand’, &c.3 The second clause is, which immediately followeth in these words, Praeterea voluit et concessit pro se et successoribus suis, quantum in se fuit, quod per praesident’Collegium Edition: current; Page: [266] praedict’ Communitat’ pro tempore exist’ et eorum successores imperpetuum, quatuor, singulis annis per ipsos eligerent qui haberent supervisum et scrutinium, correctionem et gubernationem omnium et singulorum dict’ Civitatis Medicorum, utentium facultat’ medicinae in eadem Civitate, ac aliorum Medicorum forinsecorum quorumcunque facultatem illam Medicinae, aliquo modo frequentantium et utentium infra eandem Civitatem et suburbia ejusdem, sive infra septem milliarii in circuitu ejusdem Civitatis, ac punitionem eorundem pro delictis suis in non bene exequend’ faciend’ et uten’ illa: necnon supervisum et scrutinium omnium medicinarum, et earum receptionem per dictos Medicos seu aliquem eorum hujusmodi ligeis dicti nuper Regis pro eorum infirmitatibus curand’ et sanand’ dand’ imponend’, et utend’ quoties et quando opus fuerit, pro commodo et utilitat’ eorundem ligeorum dicti nuper Regis: Ita quod punitio eorundem Medicorum utentium dicta facultate Medicinae sic in praemiss’ delinquentium per fines, amerciamenta et imprisonament’ corporum suorum, et per alias vias rationabiles et congruas exequeretur, as by the said Charter more fully appeareth. And that by force of said Letters Patents, The said John Chambre, Thomas Linacre, &c. and all the men of the same faculty in the said City were unum corpus et communitas perpet’ sive collegium perpetuum.4 And afterwards by Act of Parliament An. 14 Hen. 8. It was enacted, That the said corporation, and every grant, article, and other things in the said Letters Patents contained and specified, should be approved, granted, ratified, and confirmed, in tam amplo et largo modo prout poterit acceptari, cogitari, et construi per easdem Literas Patentes.5Edition: current; Page: [267] And further it was enacted, That the said 6 persons named in the said Letters Patents, as Principal of the said College, and2 others of the said College, who should be named Electi,6 and that the said Elects should choose one of them to be President, as by the said Act appeareth: And further they pleaded the Act of 1 Mariae, by which it is enacted, Quod quaedam concessio per Literas Patents de incorporatione facta per praedict’ nuper Regem Medicis London. Et omnes clausulae et articuli content’ in eadem concessione approbarentur, concederentur, ratificarentur et confirm’ per praedict’ Parl’; in consideratione cujus inactitat’ fuit authoritate ejusdem Parliamenti. Quod praed’ statut’ et actum Parliamenti in omnibus articulis et clausulis in eodem content’ extunc imposterum starent et continuarent in pleno robore, &c.7 And further it was enact-|Edition: Sheppard2003; Page: [115 a]-ed, That whensoever the President of the College, or Commonalty of the faculty of Physick of London for the time being, or such as the said President and College shall yearly, according to the tenor and meaning of the said Act, authorize to search, examine, correct, and punish all offenders and transgressors in the said faculty, &c. shall send or commit any such offender or offenders for his or their offence or disobedience, contrary to any article or clause contained in the said grant or Act, to any ward, gaol, or prison within the same City (the Tower of London except) that then from time to time the Warden, Gaoler, or keeper, &c. shall receive, &c. such person so offending, &c. and the same shall keep at his proper charge, without bail or mainprize, until such time as such offender or disobedient be discharged of the said imprisonment by the said President, and such persons as shall be thereunto authorised, upon pain that all and every such Warden, Gaoler, &c. doing the contrary, shall lose and forfeit the double of such fines and amerciaments as such offender and offenders shall be assessed to pay, by such as the said President and College shall authorise as aforesaid, so that the fine and amerciament be not at any one time above the sum of 20 l., the one moiety to the King, the other moiety Edition: current; Page: [268] to the President and College, &c. And further pleaded, That the said Thomas Bonham the 10th of April, within London, against the form of the said Letters Patents, and the said Acts, exercebat artem Medicinae, non admissus per literas praed’ praesidentis et Collegii sigillo eorum communi sigillat’ ubi revera praed’ Tho. Bonham fuit minus sufficiens ad artem Medicinae exercend’.8 By force of which, the said Thomas Bonham 30 April 1606, was summoned in London by the Censors or Governours of the College, to appear before the President and Censors, and Governours of the College aforesaid at the College, &c. the 14th day of April next following, super praemissis examinand’.9 At which day the said Thomas Bonham came before the President and Censors, and was examined by the Censors de scientia sua in facultate sua in Medicin’ administrand’. Et quia praed’ Thomas Bonham sic examinatus minus apte et insufficienter in praed’ arte medicinae respondebat, et inventus fuit super examinationem praed’ per praed’ Praesident’ et Censores minus insufficiens et inexpert’ ad artem Medicinae administrand’ ac pro eo quod praed’ Thomas Bonham multotiens ante tunc examinatus, et interdictus per ipsum praesident’ et Censores, de causis praed’ ad artem medicinae administrand’ per unum mensem et amplius post talem interdictionem facultatem illam in Lond’ praed’ sine licentia, &c. ideo adtunc et ibid’ consideratum fuit per praed. Praesident’ et Censores, quod praed’ Thomas Bonham pro inobedientia et contempt’ suis praed’ amerciaretur to 100s. in proximis comitiis praed’ praesident’ et Collegii persolvend’ et deinceps abstineret, &c. quousque inventus fuerit sufficiens, &c. sub poena |Edition: Sheppard2003; Page: [115 b]conjiciendi in Carcerem si in praemissis delinqueret.10 And that the said Thomas Bonham, 30 Octob. 1606, within London did practise Physick, and the same day he was summoned Edition: current; Page: [269] by the Censors to appear before the President and them the 22 of Octob. then next following, at which day Bonham made default. Ideo consideratum fuit per praed’ Censores,11 that for his disobedience and contempt he should be amerced to 10 l. and that he should be arrested and committed to custody, And afterwards 7 Novemb. 1606. the said Thomas Bonham at their assembly came before the President and Censors, and they asked him if he would satisfy the College for his dis-obedience and contempt, and submit himself to be examined; and obey the censure of the College, who answered, That he had practised Physick and would practice Physick within London, asking no leave of the College, and that he would not submit himself to the President and Censors; and affirmed, that the President and censors had no authority over those who were Doctors in the University; For which cause, the said 4 Censors, scil. Dr. Turner, Dr. Moundforde, Dr. Argent, and Dr. Dun, then being Censors or Governors, pro offensis et inobedientia praed’ adtunc et ib’ ordinaverunt et decreverunt, quod praed’ Thomas Bonham in carcerem mandaretur ib’ remansur’ quousque abinde per praesident’ et censores, seu gubernatores Collegii praed’ pro tempore existen’ deliberaretur,12 And there then by their warrant in writing, under their Common Seal, did commit the Plaintiff to the prison of the Counter in London, &c. without bail or mainprise, at the costs and charges of the said Thomas Bonham, until the said Thomas Bonham by the warrant of the President and Censors of the said college, or their Successors, was delivered. And Dr. Atkins then President, and the Censors, and Bowden and Taylor as their servants, and by the commandment of the said President and Censors, did carry the Plaintiff with the warrant, to the Gaol, &c. which is the same imprisonment. The Plaintiff replied and said, That by the said Act of 14 H. 8. it was further enacted, And where that in the Dioces of England, out of London, it is not like to find always men able sufficiently to examine (after the Statute) such as shall be admitted to exercise Physick in them, that it may be enacted in this present Parliament, That no person from henceforth be suffered to exercise or practise Physick through England, until such time that he be examined at London by the said President and 3 of the said Elects, and to have from them Edition: current; Page: [270] Letters Testimonial of their approving and examination, Except he be a graduate of Oxford or Cambridge, which have accomplished all things for his form without grace: And that the Plaintiff, in the year of our Lord 1595. was a Graduate, scil. a Doctor in the University of Cambridge, and had accomplished all things concerning his degree for his form without grace, by force whereof he had exercised and practised Physick within the City of London until the De fendants had imprisoned him, &c. upon which the Defendant did demurr in Law. And this case was often |Edition: Sheppard2003; Page: [116 a] argued by the Serjeants at Bar in diverse several Terms; And now this Term, the case was argued by the Justices, and the effect of their arguments who argued against the Plaintiff (which was divided into three parts) shall be first reported. The first was, Whether a Doctor of Physick of the one University or the other, be by the Letters Patents, and by the body of the Act of 14 H. 8. restrained to practice Physick within the City of London, &c. The second was, If the Exception in the said Act of 14 H. 8 hath excepted him or not. The third was, That his imprisonment was lawful for his said dis-obedience. And as to the first, they did relie upon the Letter of the grant, ratified by the said Act of 14 H. 8. which is in the negative, scil. Nemo in dicta civitate, &c. exerceat dictam facultatem nisi ad hoc per praedict’ praesidentem et communitatem, &c. admissus sit, &c.13 And this proposition is a general negative, and Generale dictum est generaliter intelligendum;14 and nemo15 excludeth all; and therefore a Doctor of the one University or the other, is prohibited within this negative word Nemo. And many cases were put, where negative Statutes shall be taken stricte et exclusive,16 which I do not think necessary to be recited. Also they said, that the Statute of 3 H. 8 cap. 11. which in effect is repealed by this Act of 14 H. 8. hath a special proviso for the Universities of Cambridge and Oxford, which being here left out, doth declare the intention of the makers of the Act, that they did intend to include them within thisgeneralprohibition, Nemo in dicta Civitate, &c.17 As to the two points they strongly held, that the said latter clause, And where that in the Dioceses of England out of London, &c. this clause according to the words doth extend only to places out of LondonEdition: current; Page: [271] and so much the rather, because they purview for London before, Nemo in dicta Civitate, &c. Also the makers of the Act put a distinction betwixt those who shall be licensed to practise Physick in London, &c. for they ought to have the admittance and allowance of the President and College in writing, under their Common Seal; but he who shall be allowed to practise Physick throughout England out of London ought to be examined and admitted by the President and 3 of the Elects; and so they said, that it was lately adjudged in the Kings Bench, in an Information exhibited against the said Doctor Bonham for practising of Physick in London for divers Months. As to the third point they said, That for his contempt and dis-obedience before them in their College, they might commit him to prison, for they have authority by the Letters Patents and Act of Parliament, And therefore for his contempt and misdemeanor before them they may commit him. Also the Act of—1 Mariae has given them power to commit them for every offence or dis-obedience contrary to any article or clause contained in the said grant or act, But there is an express Negative Article in the said grant, and ratified by the Act of 14 H.8|Edition: Sheppard2003; Page: [116 b]Quod Nemo in dicta Civitate, &c. exerceat, &c.18 And the Defendants have pleaded, that the Plaintiff hath practised Physick in London by the space of one moneth, &c. And therefore the Act of 1 Mariae hath authorised them to imprison him in this case; for which cause they did conclude for the Defendants against the Plaintif. But it was argued by Coke Chief Justice, Warburton and Daniel Justices at the Common Pleas, to the contrary. And Daniel conceived, That a Doctor of Physick of the one University or the other, &c. was not within the body of the Act, and if he was within the body of the Act, that he was excepted by the said latter clause: but Warburton argued against him for both the points: and the Chief Justice did not speak to those points, because he and Warburton and Daniel did agree, that this action was clearly maintainable for 2 other points. But to the 2 other points he and the said 2 other Justices, (Warburton) and (Daniel) did speak, Scil. 1. Whether the censors have power for the Causes alleged in their barr, to fine and imprison the Plaintif. 2. Admitting that they have power to doe it, if they had pursued their power. But the Chief Justice before he argued the points in Law, because that much was said in the Commendations of the Doctors of Physick of the said College within London and somewhat (as he conceived,) in derogation of the Edition: current; Page: [272] Dignity of the Doctors of the Universities, he first attributed much to the Doctors of the said College within London, and did confess that nothing was spoken, which was not due to their merits; but yet that no Comparison was to be made, between that private College, and any of the Universities of Cambridge and Oxford no more than between the Father and his Children, or between the Fountain and the small Rivers which descend from thence: The University is Alma mater,19 from whose breasts those of that private College have sucked all their science and knowledge (which I acknowledge to be great and profound) but the Law saith, Erubescit lex filios castigare parentes:20 the University is the fountain, and that and the like private Colleges are tanquam rivuli,21 which flow from the Fountain, et melius est petere fontes quam sectari rivulos.22 Briefly, Academiae Cantabrigiae et Oxoniae sunt Athenae nostrae nobilissimae regni soles, oculi et animae regni, unde Religio, humanitas, et doctrina in omnes regni partes uberrimé diffunduntur:23 but it is true, nunquam sufficiet copia laudatoris, quia nunquam deficiet materia laudis;24 & therefore, these Universities exceed and excell all private Colleges, quantum inter viburna cupressus.25 And it was observed in the said Letters Patents, and the King, and the Parliament in the Act of 14 H. 8. in making of a Law concerningPhysicians, for the more safety and health of men therein, followeth the order of a good Physician (Rex enim omn’ artes censetur habere inscrinio pect’sui26)for, Medicina |Edition: Sheppard2003; Page: [117 a]est duplex, removens, et promovens; removens morbum, et promovens ad salutem;27 And, therefore, 5. manner of persons (who more hurt the body of men than the disease itself28) are to be removed:—1. improbi.29 2. avari, qui medicinam Edition: current; Page: [273] magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitentur.30 3. malitiosi.31 4. temerarii.32 5. inscii.33 and of the other part, 5. manner of persons were to be promoted, as appeareth by the said Act, scil. those who were, 1., profound, 2. sad, 3. discreet, 4. groundedly learned, 5. profoundly studied. And it was well ordained, That the Professors of Physick should be profound, sad, discreet, &c. and not youths, who have no gravity and experience; for as one saith, In juvene Theologo conscientiae detrimentum, in juvene legista bursae detrimentum, in juvene medico caemiterii incrementum.34 And it ought to be presumed, every Doctor of any of the Universities to be within the Statutes, scil. to be profound, sad, discreet, groundedly learned, and profoundly studied, for none can there be Master of Arts (who is a Doctor of Philosophie) under the study of 7. years, and cannot be Doctor in Physick under 7. years more in the study of Physick: and that is the cause that the Plaintiff is named in the Declaration, Doctor of Philosophy, and Doctor of Physick, quia oportet Medicum esse Philosophum, ubi enim Philosophus desinit, incipit Medicus.35 As to the 2. points upon which the Chief Justice, Warburton and Daniel, gave judgment. 1. It was Resolved by them, That the said censors had not the power to commit the Plaintif for any of the Causes mentioned in the barr, and the cause and reason thereof shortly was, That the said clause, which giveth power to the said Censors to fine and imprison, doth not extend to the said Clause, scil. Quod nemo in dicta Civitate, &c. exerceat dictam facultatem, &c.36 which prohibiteth every one to practise Physick in London, &c. without licence of the President and College; but extendeth only to punish those who practise Physick within London, pro delicitis suis in non bene exequendo, faciendo et utendo facultate Medicinae,37 by fine and imprisonment: So that the Censors have not power by the Letters Patents, and the Act to fine or imprison any for practising Physick within London, but only pro delictis suis in non bene Edition: current; Page: [274] exequendo, &c.38scil. for ill and not good use and practise of Physick. And that was made manifest by 5. reasons, called vividae rationes,39 because they had their vigour and life from the Letters Patents and the Act itself. And the best Expositor of all Letters Patents, and Acts of Parliament, are the Letters Patents and the Acts of Parliament themselves, by construction, and conferring all the parts |Edition: Sheppard2003; Page: [117 b] together, Optima Statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum Statutum;40 And In ustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere.41 The first reason was, that these two were two absolute, perfect, and distinct Clauses, and as parallels, and therefore the one did not extend to the other; for the second beginneth, Praeterea voluit et concessit, &c.42 and the branch concerning fine and imprisonment, is parcel of the second clause. 2. The first Clause prohibiting the practicing of Physick, &c. doth comprehend 4. certainties;—1. certainty of the thing prohibited, scil. practice of Physick. 2. Certainty of the time, scil. practice for one moneth. 3. Certainty of penalty, scil. 5 l. 4. Certainty in distribution, scil. one moyety to the King, and the other moyety to the College; and this penalty he who practiseth Physick in London doth incurr, although he practices and uses Physick well, and profitably for the body of man; and upon this branch the Information was exhibited in the Kings Bench. But the clause to punish delicta in non bene exequendo, &c. upon which branch the case at barr stands, is altogether incertain, for the hurt which may comethereby may be little or great, leve vel grave,43 excessive or small, &c. And therefore the King and the makers of the Act, cannot, for so uncertain offence impose a certainty of the fine, or time of imprisonment, but leave it to the Censors to punish such offences, secundum quantitatem delicti, which is included in these words, per fines, amerciamenta, imprisonamenta corporum suorum, et per alias vias rationabiles et congruas;44 2. The harm which accrueth by non bene Edition: current; Page: [275] exequendo, &c.45 doth concern the body of man; and, therefore, it is reasonable that the offender should be punished in his body, scil. by imprisonment; but he who practiceth Physick in London in a good manner, although he doth it without leave, yet it is not any prejudice to the body of man. [3. He who practises physic in London doth not offend the statute by his practice, unless he practises it by the space of a month.]46 But the clause of non bene exequendo, &c. doth not prescribe any time certain, but at what time soever he ministereth Physick non bene, &c. he shall be punished by the said 2. branch: And the Law hath great reason in making this distinction, for divers Nobles, Gentlemen, and others come upon divers occasions to London, and when they are here they become subject to diseases, and thereupon they send for their Physicians in the Country, who know their bodies and the cause of their diseases; now it was never the meaning of the Act to barr any one of his own Physician; and when he is here he may practise and minister Physick to another by 2. or 3. weeks, &c. without any forfeiture; for any one who practiseth Physick well in London (although he has not taken |Edition: Sheppard2003; Page: [118 a] any degree in any of the Universities) shall forfeit nothing, if not that he practise it by the space of a month; and that was the cause, that the time of a month was put in the Act. 4.47 The Censors, cannot be Judges, Ministers, and parties; Judges, to give sentence or judgment; Ministers to make summons; and Parties, to have the moyety of the forfeiture, quia aliquis non debet esse Judex in propria causa, imo iniquum est aliquem sui rei esse judicem:48 and one cannot be Judge and Attorney for any of the parties, Dyer 3 E. 6. 65. 38 E. 3. 15. 8 H. 6. 19b. 20a. 21 E. 4. 47a. &c. And it appeareth in our Books, that in many Cases, the Common Law doth controll Acts of Parliament, and somtimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void; and, therefore, in 8 E. 3. 30 a, b. Thomas Tregor’s Case upon the Statute of West 2. Cap 38. and Artic’ Super Chartas, cap 9. Herle saith, Some Statutes are made against Common Law and right, which Edition: current; Page: [276] those who made them, would not put them in execution: The Statute of